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UNIVERSITY  OF  CALIFORNIA  LIBRARY 

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This  book  is  DLL  on  the  hist  date  stamped  l)eU)\v. 


€,vii;/ 


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W-^  JAN  191965 


RENEWAL    Mn>' 
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Form  I/.)-S..|ics  4  14 


THE  LAW  OF  THE  EMPLOYMENT  OF  LABOR 


THE  MACMILLAN  COMPANY 

MKW  YORK    •    BOSTON   •    CHICAGO 
SAN    FRANCISCO 

MACMILLAN  &  CO.,  Limithd 

LONDON    •    BOMBAY   •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltd. 

TORONTO 


THE  LAW 


OF   THE 


EMPLOYMENT  OF  LABOR 


BT 

LINDLEY   D.    CLARK,   LL.M. 


THE   MACMILLAN   COMPANY 
1911 

AU  rights  r*terved 


3^/^^ 


COPTEIGHT,    1911, 

bt  the  macmillan  company. 


Set  up  and  electrotyped.     Published  November,  igii. 


Norinoot)  $tt8S 

J.  8.  Cashing  Co.  —  Berwick  <k  Smith  Co. 

Norwood,  Mass.,  U.S.A. 


cJ 


n 

^ 


PREFACE 


This  volume  is  an  attempt  to  cover  the  field  of  law  as  it  affects 
the  employment  of  labor  in  the  United  States.     It  is  at  once  evi- 
2;    dent  that  the  method  cannot  be  exhaustive,  since  single  depart- 
ments of  the  subject  have  properly  formed  the  theme  of  a  num- 
ber of  treatises,  in  some  instances  massive ;  while  under  the  head 
of  legislation,  the  compilation  of  the  labor  laws  of  the  states  and 
3    the  United  States,  issued  from  time  to  time  by  the  United  States 
Bureau  of  Labor,  has  growTi  to  be  a  volume  of  inconvenient 
bulk.     It  has  been  thought  possible,  however,  to  discuss  and 
^     illustrate  by  the  citation  of  an  adequate  number  of  representa- 
>fi     tive  eases  and  statutes  the  principles  of  the  common  law  in  their 
p^4    most  important  phases,  as  well  as  the  nature  and  trend  of  leg- 
■<      islation,  in  so  far  as  these  are  applicable  to  workmen  and  their 
employers  in  their  relations  as  such,  in  a  single  volume  of  con- 
venient size.     No  detailed  account  of  the  items  of  legislation 
could  be  presented  in  a  work  of  this  character,  since  they  are 
shifting  so  rapidly  that  a  volume  could  hardly  be  put  through 
the  press  before  it  needed  revision.     A  summary  and  general 
view  of  such  laws  and  of  their  legal  construction  and  effect  will 
answer  the  purpose  of  the  student  of  the  question  of  the  legal 
control  of  the  subjects  under  consideration,  while  sufficient  ref- 
erences are  furnished  to  enable  the  pursuit  of  the  subject  in 
further  detail  if  desired.     An  effort  has  been  made  to  present 
with  practical  completeness  the  legal  principles  involved  in  pro- 
tective and  regulative  legislation  of  this  class,  in  so  far  as  they 
have  been  made  the  subject  of  judicial  determination  by  the 


vi  PREFACE 

higher  courts,  so  that,  while  the  volume  is  intended  primarily 
to  interest  the  student  of  the  conditions  of  labor,  it  is  believed 
that  its  value  as  a  legal  handbook  is  limited  chiefly  by  its  brevity, 
and  that  it  will  nevertheless  be  found  worthy  of  consideration  in 
such  an  aspect. 

A  recognized  pressing  need  of  the  social  organization  is  the 
securing  of  safe  and  wholesome  conditions  of  work  and  an  ad- 
justment of  the  relations  of  employer  and  employed  in  the  light 
of  their  mutual  and  reciprocal  rights  and  interests,  so  that  there 
shall  be  neither  undue  advantages  nor  undue  burdens  on  either 
side.  It  is  not  many  years  since  such  legal  provision  as  existed 
was  embodied  solely  in  the  common  law,  that  body  of  customs 
and  adjudications  that  had  come  to  have  the  sanction  of  the 
courts  of  England  and  America  to  such  an  extent  that  it  became 
a  clog  to  any  progressive  adjustment  of  law  to  changing  eco- 
nomic conditions.  Clearly  a  policy  shaped  in  the  days  of  the 
hand  loom  and  forge  and  transportation  by  horse  power  could 
poorly  provide  for  the  needs  of  industry  to-day.  The  common 
law  reduced  to  a  codified  form  is  printed  as  an  appendix  to  this 
volume,  and  sufficient  evidence  of  its  inadequacy  is  afforded  if 
this  code  is  compared  with  the  scores  of  statutes  compiled  in  the 
fifteen-hundred-page  volume  of  labor  laws,  forming  the  Twenty- 
second  Annual  Report  of  the  United  States  Commissioner  of 
Labor,  presenting  the  enactments  of  the  legislatures  of  the 
various  states  in  their  attempt  to  prescribe  the  respective  rights 
and  duties  and  to  safeguard  the  physical  and  economic  interests 
of  the  parties  to  the  labor  contract.  There  is  a  feeling,  only  too 
well  founded,  that,  despite  legislation,  the  dead  hand  of  outgrown 
doctrines  of  the  common  law  restrains  the  courts  in  their  con- 
struction of  statutes ;  but  that  there  is  encouraging  advance  in 
this  respect  cannot  be  gainsaid. 

The  unusual  activity  at  this  time  of  a  number  of  states  and 


PREFACE  vii 

of  various  organizations  in  attempting  to  solve  the  problem  of 
a  better  distribution  of  the  burdens  of  industrial  accidents  af- 
fords a  clear  indication  that  the  present  doctrine  of  employers' 
liability  will  not  much  longer  maintain  the  position  of  controlling 
importance  which  it  now  occupies.  That  the  fundamental 
assumptions  of  this  doctrine  have  been  long  since  outgrown  in 
the  destruction  of  actual  personal  contact  between  employer 
and  workman  and  the  growth  of  the  great  industries  of  trans- 
portation, manufacturmg,  and  mining,  in  which  the  mutual 
responsibility  of  fellow-workmen  becomes  impossible,  is  a  con- 
clusion that  cannot  be  disputed.  The  widespread  study  of  the 
principles  of  compensation  by  federal  and  state  commissions 
and  otherwise,  and  the  enactment  of  compensation  laws  by  the 
federal  Congress  and  by  several  state  legislatures  are  doubtless 
but  the  forerunners  of  great  and  desirable  changes  in  the  atti- 
tude of  the  law-making  bodies  and  the  courts  in  respect  of  this 
subject. 

To  what  extent  the  collective  bargaining  of  the  labor  union  is  to 
affect  the  contract  of  employment  is  another  unsettled  question. 
As  in  the  above  mentioned  matter,  it  is  a  question  of  absolute 
individualism  giving  way  to  collectivism,  or  at  least  a  modified 
individualism,  as  a  result  of  far-reaching  changes  in  the  indus- 
trial organization,  for  which  the  workingman  is  not  primarily 
responsible.  It  is  not  too  much  to  say  that  epoch-making 
decisions  affecting  labor  organizations  are  being  made  and  to  be 
expected  shortly.  The  law  on  this  subject  is  in  an  unsettled 
condition,  and  will  doubtless  remain  so  for  a  long  time  to  come. 
The  diversity  of  interests  of  the  employing  and  employed  classes, 
as  they  are  now  conceived,  and  as  they  have  always  been  re- 
garded so  far  as  history  gives  account  of  the  employment  of 
labor,  does  not  permit  an  anticipation  of  an  early  or  easy  settle- 
ment of  the  questions  involved  between  these  two  elements  of  the 


viii  PREFACE 

producing  and  distributing  forces  of  society.  It  seems  hardly 
more  than  commonplace  to  say  that  the  more  rapidly  the 
reciprocal  rights  of  combined  and  delegated  representation  of 
the  two  parties  are  recognized,  the  more  rapidly  the  existing 
problems  will  find  their  solution. 

LiNDLEY  D.  Clark. 
Washington,  1911. 


CONTENTS 


CHAPTER  I 


Forms  of 


10. 
11. 
12. 
13. 


14. 
15. 

16. 
17. 

18. 


The  Contract  of  Employment 

SECTION 

1.   The  basis  of  the  relation  of  employer  and  employee. 

contracts.     Status  of  the  labor  contract         .        ,         ,        .  1, 2 

Conditions  of  the  contract          .......  2-4 

Freedom  to  contract.     Constitutional  guarantees      .        .        .  4,  5 

Limitations  on  freedom  of  contract 6,  7 

Police  power 7-9 

Term  of  the  contract.     Implications  from  periods  of  payment  9-12 

Enforcement  of  the  labor  contract.     Specific  performance        .  12-14 
Violations  of  contracts  by  employees.     Recovery  of  wages  for 

partial  performance         ........  14-16 

Statutory  provisions  for  enforcing  contracts.     Employers'  ad- 
vances.    Abandoning  service  so  as  to  endanger  property  or 

life 16-23 

Seamen 23, 24 

Breach  of  contract  by  the  employer.     Damages        .        .        .  24-27 

Grounds  for  discharge.     Sufficiency 27-30 

Other  methods  of  dissolving  the  contract  relation.      Mutual 
consent.     Expiration  of  term.     Sickness  or  death  of  parties. 

Other  incidents  occurring  during  term.     Rescission  by  notice  30-33 

Clearance  cards 33-35 

Procuring  breach  of  contract.     Motive.     Damages  .        .        .  35-39 
Statutes  prohibiting  interference  with  contracts         .         .         .  39-42 
Right  of  employer  to  recover  for  injuries  to  employee.     Pro- 
curing intoxication 42, 43 

Civil  rights  of  employees.     Protection  as  voters.     Membership 

in  the  National  Guard 43,  44 


CHAPTER  II 
Wages 

19.  Definition.     Work  in  violation  of  law.     Payee 

20.  Rate.     How  fixed 

Lx 


45-47 
47-50 


X  CONTENTS 

BioTioN  rknn 

21.  Deductions  from  wages.     Fines  for  imperfect  work,  etc,  .        .  60,  51 

22.  Time  of  payment.     Discharged  employees.     Retaining  part 

wages  as  security 51-65 

23.  Place  of  payment 55 

24.  Attachments,  garnishments,  etc.     Exemptions         .        .        .  65-57 

25.  Assignments  of  wages.     Wage  brokers 57-60 

26.  Suits  for  wages.     Attorneys'  fees 60,  61 

27.  Mechanics'  liens 61, 62 

28.  Bonds  to  secure  payment  of  wages 62,  6.3 

29.  Liability  of  stockholders  of  corporations  for  wage  debts   .        .  63 

30.  Preference  of  wage  claims 63,  64 

31.  Payment  of  wages  in  scrip.     Store  orders          ....  64-69 

32.  Company  stores 69, 70 

33.  Freedom  of  employees  as  traders.     Choice  of  boarding  houses  70-72 


CHAPTER  III 
Hours  of  Labor 

34.  Regulation  of  hours  of  labor.     Overtime.     Outside  employ- 

ment.    Statutes     

35.  Constitutionality  of  statutes  limiting  the  hours  of  labor    . 

36.  Sunday  labor.     Employers'  liability  for  injuries  to  employees 

working  on  Sunday.     Earnings 


73-76 
76-79 

79-82 


CHAPTER  IV 
Regulation  of  ths  Physical  Conditions  of  Emplottcbkt 

37.  Statutory  control 83 

38.  Regulation  of  factories  and  workshops.    Agricultural  machin- 

ery            83,84 

39.  Steam  boilers 84,  85 

40.  Railways.     Safety  appliances.     Street  railways        ...  85,  86 

41.  Mine  regulations 86 

42.  Building  operations 86,  87 

43.  Accidents.     First  aid  appliances.     Reports       .        .        .        .  87, 88 

44.  Construction  and  interpretation  of  safety  statutes     .        .        .  88-92 

45.  Enforcement 92,93 

46.  Disobedience  of  laws.     "Waivers.     Assumption  of  risks.     Neg- 

ligence      93-98 

47.  Sufficient  compliance.     Standard  of  safety        .         .        .        .  98, 99 

48.  Sale  of  liquor  to  employees 99 


CONTENTS  xi 

CHAPTER  V 
Emplotmbnt  of  Women  and  CHiLDBKif 

SBOTIOIT  PAOXS 

49.  Special  regulations.      Prohibited  employments.      Age  limits. 

Hours  of  labor.     Suits 100-104 

50.  Effect  of  unlawful  employment  on  the  employers'  liability        .  104-106 

51.  Wages  of  married  women  and  minors 100,  107 

CHAPTER  VI 
Restrictions  on  Emplotkes 

62.   Examination,  registration,  etc.,  of  workmen     ....  108,109 

53.  Status  of  certified  employees      .......  109-111 

54.  Grounds  for  legislative  interference  ......  112-116 

55.  Age  as  a  condition  of  employment 116,  117 

56.  Resident  laborers.     Aliens 117-122 

57.  Convict  labor 122,  123 

CHAPTER   Vn 
Liability  of  Employers  for  Injuries  to  Employees 

58.  What  law  controls.     Statutes 124 

59.  Duty  of  the  employer  to  exercise  care.     Degree        .        .        .  124-126 

60.  Place  and  instrumentalities.     Discretion  of  the  employer          .  126,  127 

61.  Standards  of  care  fixed  by  statute.     Violation.     Compliance  as 

a  defense         127-129 

62.  Repair  and  maintenance 130,  131 

63.  Customary  method  or  use.     Departure  by  employee         .        .  131 

64.  Inspection.     Nature  and  degree.     Statutes       ....  131-134 

65.  Ownership  of  appliances.     Railway  cars 134,  136 

66.  Working  force.     Numbers  and  qualifications    ....  136,  136 

67.  Rules.     Enforcement 136,  137 

68.  Instructions  and  warnings 137,  138 

69.  Duties  nondelegable 138 

70.  Negligence.     Proof 139 

71.  Defenses  of  employers.     Volenti  non  Jit  iJijuria        .        .         .  139,140 

72.  Assumption  of  risks.     Knowledge.     What  risks  are  assumed  .  141-144 

73.  Contracts  and   rules   avoiding   liability.      Conflicting  views. 

Statutes 144-146 

74.  Relief  benefits.      Acceptance  as  bar   to  suits  for  damages. 

Statutes 146-149 


xii  CONTENTS 

BBOTION  PAOE8 

75.  Contributory  negligence.     Proximate  cause    ....  149-151 

76.  What  negligence  bars  recovery 161,152 

77.  Comparative  negligence.     Statutes 152,  153 

78.  The  fellow-servant  rule.     Grounds 15.S-157 

79.  Common  employment 157,  158 

80.  Contemplated  risks 158, 159 

81.  Departmental  doctrine 159,  160 

82.  Representation  of  the  employer 160 

83.  Test  of  rank 160-162 

84.  Superior  servant  doctrine 162,  163 

85.  Status  of  manager 163,  164 

86.  Heads  of  departments 164,  165 

87.  Character  of  act  as  test.     Dual  capacity 165-167 

88.  Tests  not  mutually  exclusive 167-169 

89.  Modification  of  employers'  liability  by  statute.     English  law  169-171 

90.  Statutes  affecting  designated  employments.     Hazardous  un- 

dertakings       171, 172 

91.  Promise  to  repair 172,  173 

92.  Direct  orders 173,  174 

93.  Assurances  of  safety 174,  175 

94.  Variation  of  scope  and  course  of  employment.     Volunteers    .  175-178 

95.  Details  of  work 178,  179 

96.  Contracts  with  labor  organizations 179,  180 

97.  Employers'    insurance    against    liability.       Forms.       Scope. 

Mutual  companies 180-184 

98.  Insurance  of  employees 184-186 


CHAPTER  Vin 
Workmen's  Compeksation  Laws 

99.   Federal  statute  of  1908 187-198 

100.  State  statutes 193-198 

CHAPTER  IX 
Negligence  of  Emplotees 

101.  Liability  of  employees  for  their  negligent  acts.     Injuries  to 

fellow-servants.     Injuries  to  third  persons.    Bonds.    Intoxi- 
cation        199-201 


CONTENTS 


xm 


BECTIOX 

102.  Liability  of  the  employer  to  third  persons  for  negligence  of 

employees.     Joint  liability  of  employer  and  employee 

CHAPTER   X 
Sundry  Statutes 

103.  Liability  of  employers  for  taxes  of  employees 

104.  Profit  sharing  by  employees.     Special  stock 

105.  Pensions  for  employees 

106.  Cooperative  associations 

107.  Workmen's  trains    . 

108.  Employment  offices 

109.  Bureaus  of  labor 


201-204 


205,206 
206 

206,  207 
207 
207 

208-211 

211,  212 


CHAPTER   XI 
Trade  and  Labor  Associations 


110.  Nature 

111.  Status  at  common  and  statute  law 

112.  Rules,  by-laws,  etc. 

113.  Membership     . 

114.  Collective  agreements 

115.  The  closed  shop 

116.  The  union  label 

117.  Restrictive  combinations.     Anti-trust  laws 


213-217 
217-226 
226-2.30 
230-235 
235-240 
240-246 
246-250 
250-256 


CHAPTER   XII 
Labor  Disputes 

118.  Conspiracies 267-261 

119.  Strikes 261-272 

120.  Persuasion  or  incitement  to  strike 272-276 

121.  Picketing 276-282 

122.  Boycotts 282-293 

123.  Blacklists 293-295 

124.  Interference  with  employment,  intimidation,  etc.    .         .        .  295-300 

125.  Remedies  by  suits  at  law 300-304 

126.  Injunctions 305-323 

127.  Contempts 32;J-S31 

128.  Mediation  and  arbitration 331-340 

Appendix  :  A  code  of  the  common  law 341-346 


LAW  OF  THE  EMPLOYMENT  OF  LABOR 

CHAPTER  I 

THE  CONTRACT  OP  EMPLOYMENT 

Section  1.  The  Basis  of  the  Relation  of  Employer  and  Em- 
ployee. —  In  order  that  the  status  of  employer  and  employee 
may  come  into  existence  there  must  be  a  contract  or  agreement 
between  the  employer  or  his  representative  and  the  person  enter- 
ing upon  service  or  his  representative.  Such  a  contract  may  be 
informal  to  the  extent  of  being  only  inferable  from  the  conduct 
of  the  parties,^  or  it  may  be  carefully  drawn  in  writing,  signed, 
and  witnessed.  Contracts  which  cannot  be  completed  within 
one  year,  to  be  enforceable,  must  be  in  writing,  being  within 
the  statute  of  frauds.*  In  case  of  an  implied  contract,  sufficient 
facts  must  be  shown  to  support  it,'  since  a  mere  volunteer  can 
neither  collect  wages  nor  hold  the  person  served  liable  for 
injuries.*  No  practicable  form  of  contract,  however  elaborate, 
could  be  presumed  to  embody  all  the  conditions  and  conse- 
quences that  result  from  the  consent  of  the  parties,  the  one  to 

'  Nimmo  v.  Walker.  14  La.  Ann.  581. 

« Jones  V.  Hay.  52  Barb.  501  (N.Y.) ;  Hassclman  Printing  Co.  v.  Fry,  9  Ind. 
App.  393,  35  N.E.  1045. 

»  Hart  V.  Hess,  41  Mo.  441 :  Goddard  v.  Foster,  17  Wall.  123  (U.S.) ;  Robin- 
son V.  Cushman,  2  Den.  141  (N.Y.). 

*  Roberts  v.  Swift,  1  Ycates  209  (Pa.) ;  Jones  v.  Jincey,  9  Grat.  708  (Va.)  ; 
Bartholomew  r.  Jackson,  20  Johns.  28  (N.Y.) ;  Langan  v.  Tyler,  114  Fed.  716 
(C.C.A.). 

B  1 


2  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

render  service,  and  the  other  to  receive  it  and  to  pay  compensa- 
tion therefor.  In  other  words,  there  is  formed  a  status  of  the 
two  parties,  determined  by  long  usage,  the  ruHngs  of  the  courts 
in  unnumbered  cases,  and  many  statutory  enactments,  the  de- 
tails of  which  are  to  be  known  only  by  a  consideration  of  the 
whole  law  relating  to  employment,  and  which  no  contract 
attempts  to  express. 

There  is  not  in  the  United  States,  nor  has  there  ever  been 
since  the  establishment  of  the  Government,  any  difference  be- 
tween contracts  of  hiring  and  other  contracts,  so  far  as  the  gen- 
erally controlling  principles  of  law  are  concerned.  Competent 
parties  {i.e.,  of  legal  capacity),  mutual  agreement,  and  lawful 
and  sufficient  consideration,  are  the  essentials  here  as  elsewhere. 
The  same  limitations,  neither  more  nor  less,  as  to  immoral  acts 
or  those  otherwise  contravening  public  policy  affect  the  con- 
tract of  employment  as  they  do  other  contracts.  But  the 
agreement  having  been  reached,  the  law  intervenes  to  secure  to 
both  parties  certain  rights  and  defenses  that  have  been  con- 
ceived, through  a  long  series  of  adjudications  and  legislation, 
to  best  conserve  the  interests  of  the  immediate  parties  to  the 
contract,  and,  in  what  may  fairly  be  said  to  be  an  increasing 
degree,  the  interests  also  of  that  great  third  party,  the  general 
public. 

Section  2.  Conditions  of  the  Contract.  —  Among  the  condi- 
tions imposed  by  law,  but  not  at  all  appearing  in  any  customa- 
rily used  contract,  are  the  requirement  that  the  employee  shall 
be  engaged  only  in  lawful  pursuits,^  that  he  shall  be  treated  with 
reasonable  regard  to  health  and  comfort,^  that  he  shall  not  be 

>  Warner  v.  Smith,  8  Conn.  14;  Com.  r.  St.  Germans.  1  Browne  241  (Pa.). 
«  Gillis  V.  Space,  63  Barb.  177  (N.Y.) ;  Luske  v.  Hotchkiss,  37  Conn.  219. 


THE  CONTRACT  OF  EMPLOYMENT         3 

exposed  to  other  risks  than  those  reasonably  incident  to  his 
employment,'  and  that  the  conditions  surrounding  employment 
shall  not  be  corrupting  or  immoral.^  On  the  other  hand,  an  em- 
ployee is  supposed  to  be  competent,^  to  obey  reasonable  instruc- 
tions and  commands,*  to  use  ordinary  care  in  the  performance 
of  his  work,^  and  to  have  due  regard  for  his  master's  interests.^ 

Rules  of  the  employer  or  customs  of  the  trade,  not  in  terms 
forming  a  part  of  the  contract  of  employment,  must  be  shown  to 
have  been  known  to  both  parties  at  the  time  the  contract  was 
entered  into  if  they  are  to  be  incorporated  therein  as  a  matter  of 
defense  in  an  action  at  law7  And  a  mere  continuance  in  service 
after  becoming  aware  of  regulations  not  known  at  the  time  the 
contract  was  made  is  only  evidence  tending  to  show  assent,  and 
is  not  conclusive.* 

Where  the  rate  of  wages  is  not  definitely  fixed,  custom  may 
be  referred  to,  and  the  court  will  undertake  to  find  out  what  the 
services  were  reasonably  worth  and  award  a  quantum  meruit,' 
due  regard  being  had  for  special  skill  or  professional  ability ; '° 
and  so[^of  the  other  factors  that  enter  into  a  contract  of  employ- 
ment, though  the  rules  of  common  law,  the  effect  of  custom,  and 
even  the  terms  of  the  contract  itself  are  becoming  more  and 

» See  Chapter  VI. 

'  Warner  v.  Smith,  supra;  Berry  v.  Wallace,  Wright  657  (Ohio). 

«  WaugL  V.  Shunk,  20  Pa.  St.  130 ;  Parker  v.  Piatt,  74  111.  430. 

*  Lawrence  v.  Gullifer,  38  Me.  532. 

'  McCracken  v.  Hair,  2  Speers  256  (S.C). 
»  Gower  v.  Andrew,  59  Cal.  119.  43  Am.  Rep.  242. 

^  Dodge  r.  Favor,  15  Gray  82  (Mass.) ;  Harmon  r.  Salmon  Falls  Mfg.  Co., 
35  Me.  447. 

*  CoUina  t>.  Iron  Co.,  115  Mass.  23. 

»  Bagley  v.  Bates,  Wright  705  (Ohio) ;  Miller  v.  Cuddy,  43  Mich.  273,  38  Am. 
Rep.  181. 

»•  Stockbridge  v.  Crooker,  34  Me.  349. 


4  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

more  affected  by  statutory  enactments  and  the  construction 
put  upon  them  by  the  courts  of  the  various  states. 

The  general  rule  applicable  to  the  formation  of  contracts  that 
there  must  be  a  meeting  of  the  minds  of  the  parties  thereto,  is  in 
force  in  labor  contracts  to  prevent  fraud  and  misrepresentation 
as  to  the  conditions  in  existence  in  the  employer's  works  or 
business ;  but  a  few  states  have  enactments  lookmg  to  the  more 
specific  prohibition  of  deception,  and  particularly  in  the  matter 
of  the  existence  or  non-existence  of  strikes.^  The  nature  of  the 
employment  and  the  prevalent  sanitary  conditions  must  not  be 
misrepresented,  under  like  penalty,  though  with  reference  to 
strikes,  it  is  in  most  cases  made  unlawful  to  fail  to  give  notice 
where  they  are  in  existence,  while  only  actual  false  statement 
with  reference  to  other  conditions  is  condemned. 

Section  3.  Freedom  to  Contract.  —  Whether  the  right  of 
contract  is  inherent  in  free  manhood,  as  has  been  concluded 
from  the  guarantee  of  Magna  Charta  that  "No  freeborn  man 
shall  be  disseized  of  his  free  tenement  or  liberties  or  his  free  cus- 
toms," taking  "customs"  to  include  freedom  of  trade;  or 
whether  it  depends  on  such  guarantees  as  are  found  in  our 
national  and  state  constitutions,  is  a  question  of  historical  in- 
terest, but  not  of  controlling  importance.  There  is  frequent 
reference  to  the  fourteenth  amendment  to  the  Constitution  of 
the  United  States  in  cases  in  which  the  freedom  of  contract  is 
discussed,^  as  well  as  to  the  similar  provisions  of  the  state  consti- 
tutions relative  to  the  protection  of  liberty  and  property.  While 
these  seem  practically  to  embody  the  doctrine  of  the  clause  of 

1  Cal.,  Sim's  Penal  Code,  p.  635  ;  111.,  R.S.,  ch.  48,  sec.  49  ;  Mont.,  Acta  1903, 
ch.  80 ;  Oreg.,  Acts  1903,  p.  193 ;  Tenn.,  Acts  1901,  ch.  104. 

>  Allgeyer  r.  Louisiana,  165  U.S.  578,  17  Sup.  Ct.  427 ;  Lochner  r.  New  York, 
198  U.S.  46,  25  Sup.  Ct.  639. 


THE  CONTRACT  OF  EMPLOYMENT  5 

Magna  Charta  quoted  above,  it  is  sufficient  for  our  present  pur- 
pose that  these  guarantees  exist,  and  that,  with  the  common 
acceptance  of  the  view  that  the  protection  of  property  involves 
the  protection  of  the  right  to  make  reasonable  contracts  with 
reference  to  its  acquisition  and  use,  they  are  understood  to 
guarantee  the  freedom  of  the  contract  of  employment.^ 

Labor  is  the  workingman's  capital,  and  it  is  his  right  to  em- 
ploy it  or  dispose  of  it  as  may  appear  to  his  judgment  best  in 
the  conditions  in  which  he  finds  himself,  subject  only  to  the 
rules  of  law  that  forbid  contracts  which  are  against  pubUc 
policy.2  Every  man  has  the  right  to  earn  his  living,  or  to  pur- 
sue his  trade  or  business,  without  undue  interference,  a  right  of 
absolute  freedom  to  employ  or  to  be  employed,'  to  make  con- 
tracts with  reference  to  service,  whether  as  employer  or  em- 
ployee, or  to  refrain  from  making  them,  for  any  reason  or  no 
reason,*  and  such  a  right  is  both  a  hberty  and  property  right, 
within  the  guarantees  of  the  federal  Constitution.^  Such  a 
statute  as  that  of  Indiana,  therefore,  which  prohibits  employers 
from  discriminating  against  persons  or  classes  of  persons  seeking 
employment,  by  posting  notices  or  otherwise,*  is  obviously  of 
no  value,  since  the  employer  is  as  free  to  reject  as  the  employee 
is  to  refuse  any  proposition  for  employment,  no  matter  by  whom 
made,  or  for  what  reason  held  undesirable. 

»  Lochner  v.  New  York,  supra:  Mullet  v.  Oregon,  208  U.S.  412,  28  Sup.  Ct. 
324  ;  Atkins  v.  Fletcher  Co..  65  N.J.  Eq.  658,  55  Atl.  1074. 

»  People  r.  Marx,  99  N. Y.  377,  2  N.E.  29  ;  In  re  Jacobs,  98  N.Y.  98 ;  Frorer  v. 
People,  141  111.  171.  31  N.E.  395. 

» Jersey  City  Printing.  Co.  r.  Cassidy,  63  N.  J.  Eq.  759.  53  Atl.  230. 

*  Adair  r.  United  States,  208  U.S.  161,  28  Sup.  Ct.  277  ;  New  York,  C.  A  St. 
L.  R.  Co.  r.  Schaffer.  65  Ohio  St.  414,  62  N.E.  1036. 

» State  V.  Missouri  Tic  &  Timber  Co..  181  Mo.  536,  80  S.W.  933 ;  Jonea  v. 
Leslie,  (Wash.)  112  Pac.  81.  "A.S.,  sec.  7087p. 


6  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Section  4.  Limitations  on  Freedom  of  Contract.  —  This  free- 
dom is  legal  rather  than  economic  and  practical,  and  has  been 
called  a  legal  fiction,  a  designation  which  appears  just  in  view  of 
the  widespread  manifestation  of  a  purpose  to  interfere  with  and 
restrict  it  by  legislative  action.  The  man  without  invested 
capital  requires  the  constant  return  from  his  labor  in  order  that 
his  own  needs  and  those  of  his  dependents  may  be  met ;  while 
the  employer,  who  may  as  imperatively  require  labor  for  the 
conduct  of  his  business,  still  has  between  him  and  immediate 
want  a  reserve  fund  which  makes  him  the  economic  superior  of 
the  average  man  seeking  employment.  To  lessen  this  in- 
equality, organized  labor  provides  "out-of-work"  and  "strike" 
funds,  to  tide  the  membership  over  the  period  of  unemploy- 
ment. The  rules  of  labor  organizations  also  restrict  the  free 
action  of  their  members,  while  society  at  large  proceeds  by  way 
of  legislation,  seeking  to  fix  the  conditions  of  employment, 
either  generally,  or  for  specific  industries  or  groups  of  indus- 
tries. There  is  now  a  very  considerable  body  of  such  legislation 
relating  to  the  modes  and  times  of  paying  wages,  and,  on  public 
works,  the  rate  of  wages ;  to  the  hours  of  labor,  the  condition 
of  working  places,  the  guarding  of  machinery,  the  employment 
of  women  and  children,  and  much  also  that  would  not  come 
within  the  scope  of  statutory  regulation  were  it  not  for  the 
recognized  difference  between  the  average  employer  and  the 
average  employee  in  freedom  to  choose  or  reject  the  conditions 
of  employment.  Of  wider  general  scope,  but  of  less  importance 
as  actually  affecting  the  contract  of  employment,  are  provi- 
sions found  in  the  codes  of  a  few  states,  taken  from  the  work  of 
a  commission  appointed  by  the  state  of  New  York  in  the  year 
1857,  to  draft  a  code  for  that  state.     This  draft  was  a  codifica- 


THE  CONTRACT  OF  EMPLOYMENT  7 

tion  in  pretty  complete  form  of  the  common  law,  and,  though 
it  was  rejected  by  the  state  for  which  it  was  prepared,  it  was 
adopted  by  California,  Montana,  and  the  Dakotas.^  It  is,  as 
indicated,  nothing  more  than  a  restatement  of  the  principles 
of  the  common  law,  so  that  while  it  embraces  many  of  the  topics 
to  be  considered  in  the  present  undertaking,  its  provisions  call 
for  no  discussion  apart  from  that  given  the  rules  laid  down  by 
the  courts  as  the  common  law. 

Section  5.  Police  Power.  —  The  question  naturally  arises  as 
to  the  right  or  authority  of  legislatures  to  intervene  in  the 
matter  of  contracts  of  employment  so  as  to  modify  the  other- 
wise prevalent  rule  of  unrestricted  freedom;  and  the  answer  is 
that  it  is  only  as  an  exercise  of  the  so-called  police  powers  of  the 
states  that  such  acts  can  be  accepted  as  valid.  What  these 
police  powers  are  is  not  a  matter  of  accurate  definition,  inas- 
much as  they  concern  the  policy  of  the  individual  states,  which 
is  subject  to  growth  and  change  with  changing  industrial  and 
social  conditions.^  The  poHce  power,  in  its  broadest  accepta- 
tion, means  the  general  power  of  a  government  to  preserve  and 
promote  the  public  welfare  by  prohibiting  all  things  hurtful  to 
the  comfort,  safety,  and  welfare  of  society,  and  establishing 
such  rules  and  regulations  for  the  conduct  of  all  persons  and  the 
use  and  management  of  all  property,  as  may  be  conducive  to 
the  public  interest.'  It  relates  to  the  safety,  health,  morals, 
and  general  welfare  of  the  public.     Both  property  and  liberty 

'  See  Appendix.  This  code  haa  been  amended  in  some  respects  in  at  least 
three  of  the  states  named,  but  is  reproduced  in  practically  its  original  form  as 
presenting  in  brief  the  principles  of  the  common  law  governing  the  contract  of 
employment.     It  is  referred  to  as  the  Field  Code,  from  its  chief  editor. 

«  Atkin  V.  Kansas,  191  U.S.  207,  24  Sup.  Ct.  124 ;   Holden  v.  Hardy,  169  U.S. 

366,  18  Sup.  Ct.  383.  » Am.  <fe  Eng.  Cyc.  of  Law,  Vol.  22,  p.  916. 


8  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

are  held  on  such  reasonable  conditions  as  may  be  imposed  by 
the  governing  power  of  the  state  in  the  exercise  of  this  power, 
and  with  such  conditions  the  guarantees  of  freedom  of  contract 
in  the  fourteenth  amendment  were  not  designed  to  interfere.^ 
In  the  case  just  cited,  it  was  said  that  this  power  exists  in  the 
sovereignty  of  each  state,  but  is  none  the  less  subject  to  the  in- 
quiry whether  any  particular  exercise  of  it  or  enactment  under 
it  is  fair,  reasonable,  and  appropriate ;  or  whether,  on  the  other 
hand,  it  is  an  unreasonable,  unnecessary,  and  arbitrary  inter- 
ference with  the  right  of  individuals  to  their  personal  liberty. 
Not  every  invasion  of  the  right  of  hberty  or  property  will  be 
condemned,  however,^  and  it  will  be  left  to  the  legislatures  of  the 
states  to  declare,  as  the  representatives  of  the  people,  what 
restrictions,  within  the  constitutional  limitations,  will  be  placed 
on  the  freedom  of  contract ;  and  it  is  laid  down  by  our  highest 
tribunal  that,  while  it  is  the  duty  of  the  courts  to  guard  the  con- 
stitutional rights  of  the  citizen  against  merely  arbitrary  power, 
it  is  equally  true,  and  imperatively  demanded,  that  legislative 
enactments  declaring  the  policy  of  the  state  should  be  recog- 
nized and  enforced  by  the  courts  unless  they  are  plainly  and 
beyond  all  question  in  violation  of  the  fundamental  law  of  the 
Constitution.'  The  fact  that  principles  are  at  one  time  accepted 
as  governing  under  the  decisions  of  the  courts  construing  the 
common  law  does  not  bind  them  irrevocably  upon  the  state. 
"While  the  court,  unaided  by  legislative  declaration,  and  apply- 
ing the  principles  of  the  conomon  law,  may  uphold  or  condemn 
contracts  in  the  light  of  what  is  conceived  to  be  pubUc  policy, 

I  Lochner  v.  New  York.  198  U.S.  45,  25  Sup.  Ct.  639. 

»  People  ex  rel.  Williams  Engineering,  etc.,  Co.  v.  Metz,  193  N.Y.  148, 85  N.E. 
1070 ;  Booth  v.  People,  186  111.  43,  57  N.E.  798. 
»  Atkin  V.  Kansas,  aupra;  Holden  r.  Hardy,  supra. 


THE  CONTRACT  OF  EMPLOYMENT  9 

its  determination  as  a  rule  for  future  action  must  yield  to  the 
legislative  will  when  expressed  in  accordance  with  the  organic 
law.  The  legislature,  provided  it  acts  within  its  constitutional 
authority,  is  the  arbiter  of  the  public  policy  of  the  state."  ^ 

Section  6.  Term  of  the  Contract.  —  Apart  from  those  con- 
tracts which  by  their  terms  fix  the  period  of  their  duration  stands 
the  body  of  contracts  to  hire  generally  or  for  an  indefinite  time, 
forming  the  vast  majority  of  labor  agreements.  In  most  juris- 
dictions in  this  country  a  contract  for  an  indefinite  period  is, 
subject  to  proof  to  the  contrary,  terminable  at  any  time  at  the 
option  of  either  party. ^  An  unsupported  promise  for  permanent 
employment  is  of  this  nature ;  ^  but  if  an  employee  has  secured 
an  option  to  his  contract  for  permanent  employment  by  waiv- 
ing a  claim  for  damages,'*  or  by  giving  up  a  competing  business 
to  engage  in  the  defendant's  service,^  the  contract  cannot  be 
set  aside  merely  at  the  choice  of  the  employer. 

According  to  the  English  rule,^  which  is  also  largely  followed 
in  this  country,  the  term  of  the  contract  may  be  inferred  from 
the  conditions  agreed  to  as  to  the  times  of  payment,  payments 

«  Chicago,  B.  &  Q.  R.R.  v.  McGuire,  219  U.S.  549,  31  Sup.  Ct.  259. 

•  Lord  V.  Goldberg,  81  Cal.  596,  15  Am.  St.  Rep.  82 ;  Kansas  P.  R.  Co.  v. 
Roberson,  3  Colo.  142 ;  Babcock,  etc.,  Co.  v.  Moore,  62  Md.  161 ;  Hotchkiss  v. 
Godkin,  63  App.  Div.  468,  71  N.Y.  Supp.  629. 

»  Lord  V.  Goldberg,  supra;  Louisville,  etc.,  Co.  v.  OfiFutt,  99  Ky.  427,  36S.W. 
181 ;  St.  Louis.  I.  M.  &  S.  R.  Co.  v.  Mathews,  64  Ark.  398,  42  S.W.  902. 

«  Smith  V.  R.  Co.,  60  Minn.  330,  62  N.W.  392  ;  Pierce  v.  R.  Co.,  173  U.S.  1,  19 
Sup.  Ct.  335;  Pennsylvania  Co.  v.  Dolan,  6  Ind.  App.  109,  32  N.E.  802  (con- 
tract for  "steady  and  permanent  employment"  held  to  be  one  for  life,  or  so  long 
as  the  employee  should  be  able,  ready,  and  willing  to  perform  the  services  assigned 
by  the  company)  ;  Stearns  r.  R.  Co.,  112  Mich.  051,  71  N.W.  148.  But  see 
Texas  M.  R.  Co.  v.  Morris,  29  Tex.  Civ.  App.  491,  69  S.W.  102. 

•  Carnig  r.  Carr,  167  Mass.  544.  46  N.E.  117.  35  L.R.A.  512,  and  note. 

•  Emmens  v.  Ederton,  4  H.L.C.  640 ;  Buckingham  v.  Canal  Co.,  56  L.T.R. 
(N.S.)  885.     See  Wood,  M.  &  S.,  272. 


10  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

by  the  day,  week,  month,  or  year  raising  the  presumption  that 
these  periods  indicate  the  length  of  time  the  contract  is  to  run,^ 
or  rather  that  they  mark  the  time  at  which  it  may  be  termi- 
nated by  either  party.^  Definite  provisions  of  the  contract  will 
of  course  control,  but  in  their  absence,  language  denoting  periods 
of  payments  or  measurements  of  salary  or  wages,  as  weekly  or 
monthly,  etc.,  is  of  great  weight  in  determining  the  period  of  the 
contract.^  Where  the  time  is  not  indicated  with  greater  def- 
initeness  than  is  set  forth  in  the  simple  statement  that  the  hiring 
is  at  the  rate  of  a  designated  sum  per  annum,  the  contract  has 
been  held  to  be  an  indefinite  one ;  "*  but  no  good  reason  appears 
why,  in  the  absence  of  other  considerations  impairing  the  weight 
of  such  evidence,  a  contract  at  a  yearly  rate  should  be  on  a  dif- 
ferent footing  from  a  hiring  by  the  week  or  month,  and  there  is 
abundant  authority  for  holding  that  a  hiring  for  a  year  is  meant 
when  it  is  at  a  yearly  rate.^  Especially  is  this  the  case  where  the 
word  "  salary  "  is  used.®  When  one  continues  in  service  after 
the  expiration  of  an  agreed  or  implied  term  of  contract,  the  law 

»  Moss  V.  Decatur  Land,  etc.,  Co.,  93  Ala.  269,  9  So.  188  ;  Tenn.  Coal,  etc.,  Co. 
V.  Pierce,  81  Fed.  814  (CCA.) ;  Cronemillar  v.  Milling  Co.,  134  Wis.  248, 
114N.W.  432;  Beach  ».  Mullin,  34  N.J.L.  343;  Horn  r.  Association,  22  Minn. 
233  ;  Kelly  v.  Wheel  Co.,  62  Ohio  St.  598,  57  N.E.  984. 

»  Whitmore  v.  Werner,  88  N.Y.  Supp.  373  ;  Capron  v.  Strout,  11  Nev.  304  ; 
Norton  v.  Cowell,  65  Md.  359,  4  Atl.  408. 

'  Tubbs  V.  Cummings  Co.,  200  Mass.  555,  86  N.E.  921. 

*  Haney  v.  Caldwell,  35  Ark.  156 ;  Tucker  v.  Coal,  etc.,  Co.,  53  Hun  139 
(N.Y.) ;  Martin  v.  Ins.  Co.,  148  N.Y.  117,  42  N.E.  416;  Brookfield  v.  Drury 
College,  139  Mo.  App.  339,  123  S.W.  86. 

»  Maynard  v.  Corset  Co.,  200  Mass.  1,  85  N.E.  877;  Chamberlain  r.  Stove 
Works,  103  Mich.  124,  61  N.W.  532  ;  Moss  v.  Decatur  Land  Co.,  93  Ala.  269,  9 
So.  188 ;  Kirk  v.  Hartman,  63  Pa.  97 ;  Kellogg  v.  Ins.  Co.,  94  Wis.  554,  69  N.W. 
362  ;  Magarahan  v.  Wright,  83  Ga.  773,  10  S.E.  584. 

•  Maynard  v.  Corset  Co.,  supra;  People  r.  Meyers,  11  N.Y.  Supp.  217;  Hen- 
derson V.  Koenig,  168  Mo.  366,  68  S.W.  72. 


THE  CONTRACT  OF  EMPLOYMENT  11 

presumes  that  the  original  contract  is  renewed  as  to  both  period 
and  rate  of  payment.^  The  Field  Code  contains  the  above  pro- 
visions as  to  implied  term  and  renewal  in  statutory  form.^ 

Opposed  to  the  doctrine  of  implied  term  set  forth  above  is 
one  that  no  inference  whatever  is  to  be  drawn  from  the  use  of  the 
words ' '  week,"  "  month,"  or  "  year  "  in  fixing  the  rate  of  wages.' 
One  writer  goes  so  far  as  to  say  that  the  rule  is  inflexible  that  a 
hiring  at  so  much  a  day,  week,  or  year  raises  no  presumption  as 
to  the  length  of  time  the  service  is  to  continue,  and  that  the 
employee  is  charged  with  the  burden  of  proving  that  any  other 
than  an  indefinite  hiring  is  meant,  terminable  at  the  will  of 
either  party.*  In  this  view,  a  hiring  by  the  month  can  be  ter- 
minated at  any  time,  either  during  the  month  or  at  its  end, 
without  notice ;  ^  and  the  word  "  salary  "  imports  nothing  as  to 
term,  even  when  stated  as  a  yearly  salary.®  This  statement  is 
obviously  too  sweeping,  and  contrary  cases  are  to  be  found  in 
some  of  the  jurisdictions  from  which  citations  come  in  support 
of  it ; '  and  the  better  reason  clearly  favors  the  attaching  of 
some  measure  of  significance  to  the  designations  of  periods  of 
time,  even  though  the  principal  idea  is  that  of  rate  of  payment 
and  not  of  term  of  employment. 

1  Chemical  Works  v.  Pender.  74  Md.  15,  21  Atl.  6S6 ;  Tattersonr.  Mfg.  Co., 
106  Mass.  56  ;  Adams  v.  Fitzpatrick,  125  N.Y.  124,  26  N.E.  143. 

*  See  Appendix. 

»  Weidman  v.  United  Cigar  Stores  Co.,  223  Pa.  St.  160,  72  Atl.  377. 

*  Wood.  M.  &  S.,  2d  ed.,  sec.  136. 

•The  Rescue.  116  Fed.  380;  The  Pokanoket,  156  Fed.  241  (CCA.) ;  Evans 
V.  R.  Co.,  24  Mo.  App.  114  ;  Haney  v.  Caldwell,  35  Ark.  156  ;  Frank  v.  Maternity, 
etc.,  Co.,  107  N.Y.  Supp.  404. 

«  Edwards  v.  Seaboard  &  R.  R.  Co.,  121  N.C  490,  28  S.E.  137  ;  Martin  r.  Ins. 
Co.,  148  N.Y.  117,  42  N.E.  416. 

^The  Hudson,  Olcott  396,  Fed.  Cas.  No.  6831;  Zendcr  r.  Seliger-Toothil 
Co.,  39  N.  Y.  Supp.  346  ;  Jones  v.  Trinity  Parish  Vestry,  19  Fed.  59. 


12  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Entire  contracts,  or  those  which  require  complete  performance 
before  any  part  can  be  considered  as  performed,  allow  no  pro- 
portionate recovery  for  part  performance,*  —  a  rule  which  may 
well  be  held  to  apply  to  a  sailor  shipping  for  a  voyage  or  a  tenant 
engaging  to  make  a  crop.  The  implication  of  terms,  as  from  a 
hiring  by  the  month  or  year,  has  been  held  to  carry  with  it  the 
conclusion  that  such  a  contract  was  entire,  i.e.,  for  full  periods 
of  months  or  years,  and  the  obvious  hardship  of  such  a  rule  and 
the  failure  of  the  reason  therefor  in  many  cases  where  it  is  clearly 
practicable  to  consider  contracts  as  severable  have  led  to  the 
rejection  by  some  courts  of  such  a  rule,^  which  rejection  may  in 
turn  have  had  something  to  do  with  the  modification  of  the  rule 
as  to  implied  terms;  since  it  is  obvious  that  if  the  employee 
claims  the  right  to  hold  his  employer  to  payment  for  entire 
units  of  time  of  employment,  he  is  equitably  obligated  to  render 
entire  units  of  service  or  waive  claims  for  fractional  parts  of  the 
unit  of  time  during  which  he  may  have  worked,  be  it  week, 
month,  or  year.' 

Section  7.  Enforcement  of  the  Labor  Contract.  —  A  prime 
consideration  in  connection  with  any  agreement  is  the  matter 
of  its  enforcement,  i.e.,  the  question  as  to  procuring  the  actual 
specific  performance  of  the  act  concerning  which  the  agreement 
was  made,  or  the  redress  available  if  this  is  not  feasible.  In 
general,  contracts  are  enforceable  in  equity  according  to  their 
terms,  unless  there  is  an  adequate  remedy  in  a  suit  at  law  for 
money  damages.    The  labor  contract  is  an  exception  to  the 

•  McMillan  v.  Vanderlip,  12  Johns.  165  (N.Y.) ;  Jennings  v.  Camp,  13  Johns. 
94  (N.Y.) ;  Davis  r.  MaxweU,  12  Mete.  286  (Mass.). 

»  Britton  V.  Turner,  6  N.H.  481 ;  Piiler  v.  Nichols,  8  Iowa  106 ;  Rickar.  Yatea, 
6  Ind.  115 ;  2  Pars.  Cont.  pp.  40,  41.     See  sec.  8. 

» Beach  v.  Mullin,  34  N.JJj.  343 ;  2  Pars.  Cont.  p.  35. 


THE  CONTRACT  OF  EMPLOYMENT  13 

general  rule,  no  enforcement  of  the  specific  performance  of 
merely  personal  services  being  granted/  because  of  the  inability 
of  the  courts  to  supervise  or  insure  their  execution,'^  as  well  as 
because  such  enforcement  would  savor  of  involuntary  servi- 
tude.^ An  employee  contracting  to  render  exclusive  services  of 
a  unique  or  extraordinary  character,*  or  whose  breach  of  con- 
tract would  involve  the  probable  disclosure  of  trade  secrets,* 
may,  however,  be  enjoined  from  rendering  service  to  another 
during  the  period  of  time  for  which  the  previous  contract  was 
to  run.  The  application  of  this  remedy  will  be  restricted  to  a 
reasonable  length  of  time,®  though  the  restriction  as  to  time 
does  not  apply  to  the  matter  of  the  disclosure  of  trade  secrets, 
that  not  being  construed  as  a  contract  in  restraint  of  trade.'' 
A  perpetual  injunction  will  therefore  lie  against  the  disclosure 
of  trade  secrets  by  an  employee  who  has  been  inducted  there- 
into under  an  agreement,  express  or  implied,  that  they  shall  not 
be  disclosed ;  *  and  an  employee  is  bound  by  such  an  agreement 
without  regard  to  the  methods  by  which  he  obtained  his  knowl- 

»  Arthur  v.  Oakes,  63  Fed.  310 ;  Roquemore  &  Hall  v.  Mitchell  Bros.,  167  Ala. 
475,  52  So.  423  ;  Iron  &  Steel  Co.  v.  Nichols.  73  N.J.  Eq.  684,  69  Atl.  186  ;  Ga. 
Code,  sec.  4919. 

»  Wm.  Rogers  Mfg.  Co.  v.  Rogers,  58  Conn.  356,  20  Atl.  467. 

»  Clark's  Case,  1  Blackford  (Ind.),  122,  12  Am.  Dec.  213. 

•  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  604 ;  Keith  r.  Kellermann,  169 
Fed.  19C:  McCall  v.  Wright,  198  N.Y.  143,  91  N.E.  516;  McCaull  r.  Braham, 
16  Fed.  37;  Ga.  Code,  sec.  4919. 

« Harrison  v.  Sugar  Refining  Co.,  116  Fed.  304  (CCA.) ;  McCall  v.  Wright, 
supra. 

•  Harrison  r.  Sugar  Ref.  Co.,  supra;  Iron  A  Steel  Co.  v.  Nichols,  ewpra; 
see  also  Marble  Co.  v.  Ripley,  77  U.S.  (10  Wall.)  339. 

Uarvis  p.  Peck,  10  Paige's  Ch.  118  (N.Y.) ;  Taylor  r.  Blanchard,  13  Allen 
370  (Mass.).  90  Am.  Dec.  203;  Thumc.  Tloczynski,  114  Mich.  149,72  N.W.  140. 

•  Peabody  v.  Norfolk,  98  Mass.  452  ;  Stone  v.  Goss,  65  N.J.  Eq.  756,  55  Atl. 
736 ;  H.  B.  Wiggins'  Sons  Co.  v.  Cott-A-Lapp  Co.,  169  Fed.  150. 


14  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

edge  of  the  secret.^  An  agreement  that  is  so  broad  as  to  pre- 
clude the  disclosure  or  use  of  one's  own  secrets  or  discoveries 
made  during  employment,  or  of  all  the  treatments  and  pro- 
cesses used  by  his  employer,  whether  secret  or  not,  is  not 
enforceable  by  inj  unction  .^ 

Section  8.  Violations  of  Contracts  by  Employees.  —  Actions 
for  damages  are  available  for  the  violation  of  labor  contracts  as 
in  the  case  of  other  broken  contracts,^  though  the  damages  must 
be  shown  to  be  actual  in  order  to  support  a  recovery.*  Inas- 
much, however,  as  it  is  often  true  that  a  judgment  against  the 
employee  will  fail  to  secure  returns,  while  one  against  the  em- 
ployer will  have  value,  the  consequence  is  that  in  such  cases 
there  is  a  condition  in  which  one  party  can  violate  his  contract 
without  liability,  while  it  is  enforceable  against  the  other.  The 
practical  effect  of  this  condition  is  modified  by  the  fact  that  the 
term  of  hiring  is  customarily  indefinite  and  general  and  termin- 
able at  the  will  of  either  party.  Compulsory  servitude,  which  is 
prohibited  by  the  thirteenth  amendment  to  the  Constitution 
of  the  United  States,  would  be  too  nearly  approached  by  a  con- 
struction of  law  that  would  compel  service  beyond  a  voluntary 
rendition  of  it;  while  to  compel  employment  would  not  be 
allowed,  since  that  would  be  an  infringement  on  the  freedom  of 
contract,  *  which  cannot  be  waived,  even  by  contract.® 

A  pecuHar  provision  found  in  the  Field  Code  is  one  that  seems 
to  imply  that  a  contract  for  two  years  or  under  can  be  enforced 

•  Thum  V.  Tloczynski,  supra.  *  Iron  &  Steel  Co.  v.  Nichols,  supra. 

»  Word  V.  Winder,  16  La.  Ann.  Ill ;  Payne  v.  Western  &  Atlantic  R.  Co.,  13 
Lea  507  (Tenn.) ;  Hamblin  v.  Dinneford,  2  Edw.  Ch.  533  (N.Y.). 

•  Hasselman  Printing  Co.  v.  Fry,  9  Ind.  App.  393,  36  N.E.  863. 
'  Reid  Ice  Cream  Co.  v.  Stephens,  62  III.  App.  334. 

•  Hilton  c.  Eckersley,  6  EU.  &  Bl.  47. 


THE  CONTRACT  OF  EMPLOYMENT  15 

in  the  states  adopting  it,  the  law  stating  that,  except  in  the 
case  of  apprenticeship,  no  contract  can  be  enforced  against  an 
employee  beyond  the  term  of  two  years  from  the  commencement 
of  services  under  it.^  This  cannot  be  construed,  however,  as 
looking  toward  an  enforcement  of  specific  performance,  which 
is  prohibited  by  statute,^  but  only  as  setting  a  period  to  con- 
tracts giving  rise  to  actions.  It  is  not  held  to  make  the  contract 
void  as  against  the  employer,  but  only  to  leave  it  to  the  election 
of  the  employee  whether  he  will  continue  service  thereunder. 
If  he  chooses  to  do  so,  he  may  also  sue  for  the  value  of  his 
services  in  an  action  on  a  quantum  meruit,  though  the  contract 
may  be  referred  to  by  the  employer  as  presumably  fixing  the 
value  of  the  services  contemplated.' 

The  unwarranted  abandonment  of  a  contract  gives  rise  to  the 
question  of  the  recovery  of  unpaid  wages  earned  by  the  employee 
before  leaving  service.  Where  the  contract  is  entire,  so  that  no 
part  of  it  can  be  said  to  be  completed  before  the  entire  work  is 
finished^  no  recovery  can  usually  be  had.''  This  rule  has  been 
incorporated  in  statute  law.^  A  contract  for  a  fixed  period, 
whatever  its  length,  is  an  entire  contract,  and  falls  within  the 
above  rule.^  The  rigor  of  this  rule  has  been  objected  to  in 
favor  of  an  equitable  recognition  of  the  value  of  the  portion  of 

>  Cal.,  Civ.  Code,  sec.  1980.  See  Appendix. 

»  Cal.,  Civ.  Code,  sec.  3390. 

«  Stone  V.  Bancroft,  139  Cal.  78,  72  Pac.  717. 

♦Hawkins  v.  Gilbert,  19  Ala.  54;  Dugan  v.  Anderson,  36  Md.  567,  11  Am. 
Rep.  509;  Goldstein  p.  White,  16  N.Y.  Supp.  860;  Davis  r.  Maxwell,  12  Mete. 
286  (Mass.)  ;   Dunn  v.  Moore,  16  111.  151. 

»  Ark.  Dig.  sec.  5028  ;  Latham  v.  Barwick,  87  Ark.  328,  113  S.W.  646. 

•Hildebrand  v.  Art  Co.,  109  Wis.  171,85  N.W.  268;  Wright  r.  Turner.  1 
Stew.  29  (Ala.),  18  Am.  Dec.  25  ;  Isaacs  v.  McAndrew,  1  Mont.  437  ;  McMillan  v. 
Vanderlip,  12  Johns.  165  (N.Y.),  7  Am.  Dec.  299. 


16  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

the  services  rendered/  and  a  more  lenient  view  is  taken  in  a 
number  of  jurisdictions,  allowing  the  employee  to  recover  the 
value  of  the  labor  performed,  less  any  damages  caused  by  his 
failure  to  complete  his  contract.'  It  is  the  general  rule  that 
where  an  entire  contract  is  broken  by  the  sickness  or  death  of 
the  employee,  or  by  his  discharge,  whether  for  cause  or  otherwise, 
he  is  entitled  to  recover  the  contract  wages  for  the  time  served, 
less  any  damages  resulting  from  his  own  misconduct ;  ^  the 
same  rule  applies  where  the  contract  is  severable,*  and  an  or- 
dinary employment  in  which  periodic  payments  are  contem- 
plated has  been  held  to  be  of  this  class.^  In  any  case,  wages 
paid  before  the  breach  cannot  be  recovered  by  the  employer,® 
nor  can  he  refuse  to  pay  a  note  given  before  the  breach  in  pay- 
ment of  wages.' 

Section  9.  Statutory  Provisions  for  Enforcing  Contracts.  — 
Not  being  enforceable  in  equity,  and  entailing  only  liability  in 
damages  for  its  violation,  the  refusal  or  failure  by  an  employee 
to  fulfill  the  terms  of  his  contract  is  not  a  criminal  act,  apart 
from  statutory  enactment,  nor  is  it  a  tort.*  A  number  of  states, 
chiefly  Southern,  have  laws  relating  to  the  enforcement  of  the 
labor  contract,  and  providing  for  penalties  for  its  violation. 
The  Louisiana  civil  code,  art.  2747,  states  that  "A  man  is  at 

»  Britton  v.  Turner,  6  N.H.  481. 

»  Wheatly  v.  Miscal,  6  Ind.  142 ;  Asher  t.  Tomlinson,  22  Ky.  L.  Rep.  1494, 
60  S.W.  714  ;  Duncan  v.  Baker,  21  Kans.  99. 

'  Hildebrand  v.  Art  Co.,  supra. 

«Tichenor  v.  Bruckheimer,  40  Misc.  194  (N.Y.) ;  White  ».  Atkins,  8  Cash. 
370  (Mass.). 

»  Walsh  V.  New  York  &  Ky.  Co.,  85  N.Y.  Supp.  83. 

•  Winn  V.  Southgate.  17  Vt.  355. 

7  Thorpe  r.  White,  13  Johns.  53  (N.Y.). 

•  Comerford  v.  Street  Ry.  Co.,  164  Mass.  13,  41  N.E.  69. 


THE  CONTRACT  OF  EMPLOYMENT  17 

liberty  to  dismiss  a  hired  servant  attached  to  his  person  or 
family,  without  assigning  any  reason  for  so  doing.  The  servant 
is  also  free  to  depart  without  assigning  any  cause";  which  is 
but  a  statement  of  the  common  law.^  The  next  article  provides, 
however,  that  "Laborers,  who  hire  themselves  out  to  serve  on 
plantations  or  to  work  in  manufactories,  have  not  the  right  of 
leaving  the  person  who  hired  them,  nor  can  they  be  sent  away 
by  the  proprietor,  until  the  time  has  expired  during  which  they 
had  agreed  to  serve,  unless  good  and  just  cause  can  be  assigned." 
In  case  of  an  unjustifiable  breach,  forfeiture  of  all  wages  earned 
during  the  expired  portion  of  his  service  is  prescribed,  if  the  act 
is  that  of  the  employee ;  or  the  forfeiture  of  the  full  wages  for 
the  term,  if  the  act  is  that  of  the  employer.  If  the  employee  is 
discharged  for  good  cause,  he  is  entitled  to  recover  wages  for 
the  time  served.'^  The  law  r"  .Arkansas  is  practically  the  same 
as  that  of  Louisiana.^ 

A  form  of  legislation  that  has  arisen  in  large  part,  no  doubt, 
from  local  economic  conditions  of  labor  is  one  that  has  regard  to 
contracts  of  employment  where  advances  of  money  or  supplies 
have  been  secured  with  fraudulent  intent.  These  laws  apply 
to  goods  advanced  during  the  continuance  of  the  contract  as 
well  as  to  those  obtained  at  the  time  it  is  made.  Thus  in  Ala- 
bama abandonment  of  the  contract  without  repayment  of  such 
advances  is  punishable  criminally  as  for  the  perpetration  of  a 
fraud  by  means  of  promises  not  intended  to  be  kept.*  An  in- 
tent to  defraud  must  be  shown,  a  mere  breach  of  the  contract 

«  Boyer  v.  W.  U.  Tel.  Co..  124  Fed.  246. 
«  Nolan  V.  Danks,  1  Robinson  332  (La.). 

•Dig.  1904.  8ec8.  5027.  5028.  See  Latham  v.  Barwick,  87  Ark.  328.  113 
S.W.  646. 

*  Code  of  1907.  sec.  6845. 
c 


.'-■^ 


18  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

not  being  a  crime ;  *  and  it  is  insisted  that  "the  criminal  feature 
of  the  statute  consists  in  the  entering  into  a  contract  with  the 
intent  to  injure  or  defraud  the  employer,  and  the  refusal  of  the 
employee  to  perform  the  contract,  with  a  like  intent.^  The 
statute  provided  that  refusal  or  failure  without  just  cause  to 
perform  the  act  or  render  the  service  agreed  upon,  or  to  refund 
the  money  or  value  of  the  property  advanced,  was  prima  facie 
evidence  of  fraudulent  intent;  and  this,  with  the  other  provi- 
sions of  the  statute,  was  held  by  the  supreme  court  of  the  state 
to  be  constitutional.^  On  appeal  to  the  Supreme  Court  of  the 
United  States,  however,  this  provision  of  the  law  was  held  to  be 
repugnant  to  the  provisions  of  the  thirteenth  amendment  to  the 
Constitution  of  the  United  States,  prohibiting  involuntary  ser- 
vitude, and  to  those  of  the  peonage  laws,*  inasmuch  as  they 
deprived  the  defendant  of  his  presumption  of  innocence,  and 
exposed  him  to  conviction  for  fraud  upon  evidence  only  of  a 
breach  of  contract  and  a  failure  to  repay  advances.^ 

»  Ex  parte  Riley,  94  Ala.  82, 10  So.  528 ;  Bailey  v.  State,  158  Ala.  18,  48  So.  498. 

*  Bailey  v.  State,  supra;  citing  Dorsey  v.  State,  111  Ala.  40,  20  So.  629  and 
Mcintosh  V.  State,  117  Ala.  128,  23  So.  668. 

3  State  V.  Vann,  150  Ala.  66,  43  So.  357 ;  Bailey  v.  State,  158  Ala.  18,  48  So. 
498 ;  same  case,  161  Ala.  78,  49  So.  886.  <  U.  S.  R.  S.,  sees.  1990,  6526. 

s  Bailey  v.  Alabama,  219  U.S.  219, 31  Sup.  Ct.  145.  "The  fact  that  the  labor 
debtor  contracted  to  perform  the  labor  which  is  sought  to  be  compelled  does  not 
withdraw  the  attempted  enforcement  from  the  condemnation  of  the  statute 
[prohibiting  peonage].  The  full  intent  of  the  constitutional  provision  could  be 
defeated  with  obvious  facility  if,  through  the  guise  of  contracts  under  which 
advances  had  been  made,  debtors  could  be  held  to  compulsory  service.  It  is 
the  compulsion  of  the  service  which  the  statute  inhibits,  for  when  that  occurs, 
the  condition  of  servitude  is  created,  which  would  be  not  less  involuntary  because 
of  the  original  agreement  to  work  out  the  indebtedness.  The  contract  exposes 
the  debtor  to  liability  for  the  loss  due  to  the  breach,  but  not  to  enforced  labor. 
The  act  of  Congress  deprives  of  effect  all  legislative  measures  of  any  state  through 
which,  directly  or  indirectly,  the  prohibited  thing,  to  wit,  compulsory  service  to 
secure  the  payment  of  a  debt,  may  be  established  or  maintained." 


THE  CONTRACT  OF  EMPLOYMENT  19 

Other  jurisdictions  having  laws  of  this  tenor  are  Arkansas/ 
Florida,^  Georgia,^  Louisiana,*  Michigan/  Minnesota,'  New 
Mexico,^  North  Dakota,*  and  South  Carolina.'  The  laws  of 
Michigan,  Minnesota,  and  North  Dakota  seem  to  contemplate 
primarily  the  fraudulent  procurement  of  transportation,  though 
they  include  other  forms  of  advances,  and  contain  the  provision 
making  failure  to  repay  prima  facie  evidence  of  fraud,  thus 
bringing  these  laws  within  the  strictures  of  the  opinion  of  the 
Supreme  Court  in  the  Bailey  Case,  The  charge  had  already 
been  made  against  some  of  the  laws  of  this  class  that  they  violate 
the  national  law  prohibiting  peonage,  which  is  defined  as  a 
"status  or  condition  of  compulsory  service,  based  upon  the  in- 
debtedness of  the  peon  to  the  master."  ^°  The  statute  under 
discussion  when  this  definition  was  given  was  an  earlier  one  of 
Florida,  and  it  was  said  by  the  Supreme  Court  of  the  United 
States  that  that  which  was  contemplated  by  the  law  was  com- 
pulsory service  to  secure  the  payment  of  a  debt.  This  case  was 
referred  to  in  the  course  of  an  opinion  in  which  a  law  of  South 
Carolina  ^^  was  declared  unconstitutional  by  a  Federal  court  as 
being  in  conflict  with  the  thirteenth  and  fourteenth  amend- 
ments of  the  Constitution  of  the  United  States,  and  laws  made 
in  pursuance  thereof.*^  This  statute  was  also  held  unconstitu- 
tional by  the  supreme  court  of  the  state  of  South  Carolina  in  a 
case  ^^  in  which    the   opinion   was  very  full,  and   in  which  a 

»  Acts  of  1907,  No.  271.       «  Acts  of  1906,  No.  54.  »  Acta  of  1905,  ch.  37. 

*  Acts  of  1907,  ch.  5678.      '  Acts  of  1903,  No.  106.        »  Acts  of  1907,  ch.  208. 
»  Acts  of  1903,  p.  90.  •  R.L.  1905.  sec.  5187.  •  Acts  of  1908,  No.  494. 

'»  Clyatt  V.  U.S.,  197  U.S.  207,  25  Sup.  Ct.  429. 
■'  Crim.  Code,  sec.  357,  as  amended  by  acts  of  1904,  No.  243. 
"  Ex  parte  Drayton,  153  Fed.  986. 

>'  Ex  parte  Hollman,  79  S.C.  9,  60  S.E.  19.  The  dissenting  opinion  presenta 
the  economic  reasons  for  laws  of  this  class. 


20  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

lengthy  dissenting  opinion  was  also  written.  In  declaring  this 
law  unconstitutional,  the  court  reversed  the  position  it  had  held 
in  earUer  cases,^  taking  the  ground  that  the  statute  violated 
the  right  of  citizens  to  be  exempt  from  imprisonment  for  debt 
except  in  cases  of  fraud,  as  provided  in  the  state  constitution ; 
further,  that  it  violated  the  thirteenth  amendment  of  the  Con- 
stitution of  the  United  States,  as  its  enforcement  would  lead  to 
peonage  or  involuntary  servitude ;  and  the  fourteenth  amend- 
ment likewise,  since  it  did  not  bear  equally  on  the  landlord  and 
the  laborer.  The  present  law  of  South  Carolina  was  enacted  by 
the  legislature  of  1908  (Act  No.  494),  and  is  extended  to  include 
personal  service  of  every  kind,  applying  to  employers  who  fail 
or  refuse  to  receive  and  compensate  personal  service  after  con- 
tracting therefor,  as  well  as  to  employees  who  fail  or  refuse  to 
render  such  service.  Fraud  or  malicious  intent  to  injure  is 
essential  to  the  offense,  the  failure  without  sufficient  cause  to 
carry  out  the  contract,  to  the  injury  of  the  other  party,  being 
prima  facie  evidence  of  fraud  and  malice.  The  law  covers  cases 
where  advances  are  not  received  or  promised,  as  well  as  others, 
though  contracts  based  on  debts  incurred  prior  to  the  commence- 
ment of  service  thereunder  are  expressly  declared  null  and  void. 
In  laws  where  the  repayment  of  advances  is  considered,  it  is 
contended  in  their  favor  that  it  is  not  against  the  laborer's 
breach  of  contract  that  the  penalty  lies,  but  against  a  mis- 
demeanor, "as  if  he  had  stolen"  the  advanced  property  (Ala- 
bama);  "he  shall  be  deemed  a  common  cheat  and  swindler" 
(Georgia);  "shall  be  guilty  of  a  misdemeanor,"  and  be  pun- 
ished by  fine  or  imprisonment  (Michigan  and  Minnesota),  etc. 

>  State  V.  Williams,  32  S.C.  124,  10  S.E.  876  ;  State  v.  Chapman,  56  S.C.  420, 
34  S.E.  961 ;  State  v.  Easterlin,  61  S.C.  71,  39  S.E.  250. 


THE  CONTRACT  OF  EMPLOYMENT  21 

It  is  claimed  that  the  state  has  the  right  to  penalize  such  breach, 
after  the  receipt  of  advances,  as  a  punishment  of  fraud,  and  for 
the  purpose  of  repressing  fraudulent  practices;  and  the  laws  have 
received  judicial  support  on  this  ground.^  The  whole  hst  of 
such  laws  apparently  falls  under  the  charge  that  was  made 
against  the  Florida  statute  in  the  Clyatt  case,  above,  —  that 
their  purpose  is  the  compulsory  payment  of  a  debt,  in  which 
view  they  would  come  under  the  strictures  of  the  same  court 
set  forth  in  another  case,  where  it  was  said  that  a  "mere  statute 
to  compel  the  payment  of  indebtedness  does  not  come  within 
the  scope  of  police  regulations."  ^  Their  effect  is,  at  least, 
*to  expose  the  weak  and  unintelligent  to  oppression  and  in- 
justice at  the  hands  of  the  powerful  and  unscrupulous,  —  to 
offer  easy  possibilities  of  misuse  for  the  collection  of  debts  and 
the  enforcement  of  civil  contracts  without  regard  to  the  inten- 
tion of  the  defendant ' ;  ^  and  they  cannot  be  looked  upon  as 
valid,  in  view  of  the  pronouncement  in  the  Bailey  case."* 

As  a  means  to  the  same  end  of  enforcing  the  performance  of  the 
labor  contract,  the  Alabama  legislature  enacted  a  law  ^  by  which 
an  employee  under  written  contract  for  a  specified  time  to  work 
for  another  or  to  lease  lands  was  prohibited  from  making  a 
second  contract  without  the  consent  of  the  first  employer  and 
without  sufficient  cause,  to  be  adjudged  by  court,  unless  he 
should  give  notice  of  the  preexisting  contract.  The  punishment 
was  a  fine  or  penal  service.     This  act  was  declared  unconstitu- 

1  Vance  v.  State,  128  Ga.  661,  57  S.E.  889 ;  State  v.  Murray,  116  La.  655.  40 
So.  930. 

»  Gulf,  etc.,  R.  Co.  V.  Ellis,  165  U.S.  157.  17,  Sup.  Ct.  257. 
'  Patterson  ».  State,  1  Ga.  App.  782,  58  S.E.  284. 

*  Bailey  v.  Alabama,  supra. 

*  Acts  of  1900-1901,  No.  483. 


22  LAW  OF  THE  EMPLOYMENT  OP  LABOR 

tional,  first  by  a  Federal  court/  and  later  by  the  supreme 
court  of  the  state.^  In  the  opinion  of  the  court  first  named  it 
was  held  that  the  act  was  a  coercive  weapon  by  which  the 
employer  would  seek  to  compel  the  payment  of  a  debt  or  the 
performance  of  a  contract,  in  cases  where  only  a  suit  for 
damages  would  lie ;  while  the  state  court  condemned  the  law 
because  of  the  restrictions  it  undertook  to  place  on  the  right 
to  make  contracts  of  employment. 

The  state  of  Mississippi  has  a  statute  ^  of  like  tenor  with 
the  above,  enacted  in  1900,  which  does  not  appear  to  have  yet 
received  consideration  at  the  hands  of  the  higher  courts,  but  is 
doubtless  likewise  invalid. 

Employees  engaged  in  the  operation  of  railroad  trains,  and  in 
Connecticut  of  street  cars,  who  abandon  the  train  or  car  at 
another  point  than  its  scheduled  destination,  are  declared 
guilty  of  a  misdemeanor  in  a  number  of  states.'*  In  some  cases 
the  law  applies  only  where  there  is  a  combination  to  strike,  and 
in  some  to  locomotive  engineers  only.  A  more  general  statute 
applies  to  any  person  violating  his  contract  when  he  knows  or 
has  reason  to  believe  that  the  probable  consequences  of  his 
breach  will  be  the  endangering  of  life,  the  causing  of  bodily 
injury,  or  the  exposure  of  valuable  property  to  destruction.^ 
A  law  of  another  state  provides  that  an  employee  of  any  sort  on 
a  steamboat  who  abandons  the  boat  before  the  termination  of 
his  contract  or  who  refuses  to  perform  the  work  for  which  he 

»  Peonage  Cases,  123  Fed.  671.  «  Toney  v.  State,  141  Ala.  120,  37  So.  332. 

•Code  of  1906,  sec.  1147. 

«Conn.,  G.S.  sec.  1293;  Del.,  R.  Code,  p.  928;  111.,  R.S.  ch.  114,  sec.  108; 
Kana.,  G.S.  sec.  2374 ;  Me.,  R.S.  ch.  124,  sec.  6 ;  N.J.,  Acts  1903,  ch.  257, 
sec.  62 ;  Pa.,  B.  P.  Dig.  p.  533. 

»  N.Y.,  C.L.  ch.  40,  sec.  1910 ;  Wash.,  Acts  1909,  ch.  249,  sec.  281. 


THE  CONTRACT  OF  EMPLOYMENT  23 

contracted  shall  not  only  forfeit  all  wages  due,  but  shall  also  be 
liable  for  all  damages  caused  by  his  act.^ 

Practically  all  the  states  have  laws  relating  to  apprentices 
and  the  regulation  and  enforcement  of  contracts  with  them. 
These  laws  generally  prescribe  the  term  of  indenture,  the  duties 
of  the  master  as  to  training,  education,  and  the  payment  of  the 
stipulated  amount  on  the  expiration  of  the  term.  The  appren- 
tice is  required  to  complete  his  term,  and  enticing  or  harboring 
him  or  otherwise  interfering  with  the  relation  of  apprenticeship 
is  forbidden.  These  laws  are  practically  obsolete  at  the  present 
time,  contracts  between  employers  and  unskilled  men  or  boys 
learning  trades  being  for  the  most  part  governed  by  the  rules 
of  law  generally  applicable  to  labor  contracts. 

Section  10.  Seamen.  —  A  class  of  employees  that  stands  on 
a  different  footing  from  any  other  is  that  of  seamen,  with  ref- 
erence to  whom  it  has  been  held  that  enforced  contracts  are  per- 
mitted, the  law  as  to  involuntary  servitude  not  being  applicable.^ 
Many  distinctive,  legally  recognized  customs  apply  to  them,  as 
well  as  a  special  code  of  statutes,  chiefly  Federal,^  since  the  con- 
trol of  seamen  belongs  to  Congress,  being  recognized  as  within 
the  commerce  clause  of  the  Constitution.'*  These  laws  and 
customs  relate  to  the  nature  of  the  contract,  the  term  of  service, 
the  payment,  assignment,  etc.,  of  wages,  advance  payments, 
and  credits,  the  regulation  of  sailors'  lodging  houses,  of  shipping 
masters,  quarters  on  board  ship,  rations,  and  many  other  details. 

The  reason  for  these  differences,  which  take  seamen  outside 
the  control  of  the  general  laws  affecting  labor,  is  grounded  in 

»  La.,  R.L.  sec.  945. 

*  Robertson  v.  Baldwin,  165  U.S.  275,  17  Sup.  Ct.  326. 

'  R.S.,  scrs.  4501  to  4012,  Comp.  Stat.  1901.  pp.  3061  to  3125. 

« Patterson  v.  The  Eudora,  190  U.S.  169,  23  Sup.  Ct.  821. 


24  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

ancient  custom,  and  is  defended  on  the  view  that  the  business 
of  navigation  requires  some  guaranties,  beyond  the  ordinary 
civil  remedies  upon  contracts,  to  effect  their  enforcement ;  and 
further,  because  of  the  manner  of  their  Ufe  by  reason  of  which 
seamen  are  peculiarly  exposed  and  subjected  to  the  will  and  ca- 
price of  the  ship's  officers  on  the  one  hand,  and  to  designing  and 
corrupt  traders,  etc.,  on  land  on  the  other.  "Indeed,  seamen 
are  treated  ^by  Congress,  as  well  as  by  the  Parliament  of  Great 
Britain,  as  deficient  in  that  full  and  intelligent  responsibility 
for  their  acts  which  is  accredited  to  ordinary  adults,  and  as 
needing  the  protection  of  the  law  in  the  same  sense  in  which 
minors  and  wards  are  entitled  to  the  protection  of  their  parents 
and  guardians."  * 

On  account  of  these  differences,  and  their  limited  field  of  ap- 
plication, the  conditions  of  employment  of  seamen  will  not  be 
further  considered. 

Section  11.  Breach  of  Contract  hy  the  Employer.  —  As  already 
stated,  a  contract  of  employment  is  enforceable  against  the 
employer  to  the  extent  that  damages  may  be  recovered  for  the 
breach  thereof,  and  an  employee  under  contract  is  entitled  to 
recover  the  wages  agreed  upon  where  the  employer  refuses  to 
accept  services  in  accordance  with  the  terms  of  the  contract.^ 
If,  however,  the  employee  fails  to  show  that  he  was  ready  and 
willing  to  render  the  services,  or  puts  himself  in  a  position  where 
performance  is  not  possible,  he  can  enforce  no  claim ; '  but 
tender  of  service  after  notice  of  discharge  is  not  necessary.'* 

>  Robertson  v.  Baldwin,  supra.  ^  Costigan  v.  R.  Co.,  2  Den.  609  (N.Y.). 

'  Polk  V.  Daly,  4  Daly  411  (N.Y.) ;  Collins  v.  Hazelton,  65  Mich.  220, 31  N.W. 
843. 

*  Bacon  v.  New  Home  S.'M.  Co.,  13  N.Y.  Supp.  359 ;  McMiillen  v.  Dickinson 
Co.,  63  Minn.  405,65  N.W.  661. 


THE  CONTRACT  OF  EMPLOYMENT  25 

Of  necessity,  no  question  can  arise  as  to  the  breach  of  a  con- 
tract terminable  at  will.  This  rule  has  been  carried  so  far  as 
to  hold  that  an  employee  who  had  left  his  place  with  his  former 
employer  and  was  proceeding  under  an  agreement  with  a  new 
employer  and  in  compliance  with  his  instructions,  could  recover 
no  damages  for  the  repudiation  of  the  contract  by  the  latter 
before  the  performance  of  any  part  of  the  contract,  in  the  ab- 
sence of  proof  of  a  stipulated  term  of  employment.'-  The  better 
reason  would  seem  to  support  the  position  that  a  breach  without 
giving  the  employee  a  chance  to  begin  work  gives  him  a  right 
to  at  least  nominal  damages ;  since,  even  though  the  contract 
was  for  no  definite  time,  it  was  for  some  time,  and  the  actual 
performance  of  and  payment  for  labor  in  some  amount  were 
contemplated.^ 

Where  an  employer  breaks  a  contract  of  hiring  for  a  specified 
time,  the  employee  may  wait  until  the  expiration  of  the  contract 
period  and  recover  the  amount  of  wages  he  would  have  earned 
but  for  his  wrongful  discharge,  less  what  he  earned  or  could 
have  earned  by  employment  elsewhere.^  It  is  held  by  the  weight 
of  authority  that  the  burden  of  showing  that  the  plaintiff  was 
able  to  procure  other  employment  rests  on  the  defendant  em- 
ployer;* though  the  question  may  be  referred  to  the  jury  to 
decide  from  the  circumstances  as  to  the  reasonable  prospect  of 

>  Savannah,  etc.,  R.  Co.  v.  Willett,  43  Fla.  311,31  So.  246.  See  also  Merrill 
V.  W.  U.  Tel.  Co.,  78  Me.  97,  2  Atl.,  847. 

«  Cronemillar  v.  Milling  Co.,  134  Wis.  248, 1 14  N.W.  432  ;  Burtis  v.  Thompson, 
42  N.Y.  246 ;  Utter  v.  Chapman,  38  Cal.  659. 

» Winkler  v.  Racine  Wagon,  etc.,  Co.,  99  Wis.  184,  74  N.W.  793 ;  Efron  ». 
Clayton,  35  S.  W.  424  (Texas  Civ.  App.) ;  Pierce  v.  R.  Co.,  173  U.S.  1,  19  Sup. 
Ct.  335  ;  Cutter  v.  Gillette,  163  Mass.  95,  39  N.E.  1010. 

*  Mathesius  v.  R.  Co.,  96  Fed.  792  ;  Wilkinson  v.  Black,  80  Ala.  332  ;  Hamilton 
V.  Love,  43  N.E.  873  (Ind.) ;   Maynard  v.  Corset  Co.,  200  Mass.  1,  85  N.E.  877. 


26  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

the  discharged  employee's  procuring  employment  during  the 
unexpired  term  of  his  contract.*  In  some  states  the  burden  is 
shifted  to  the  plaintiff.^  While  it  is  the  plaintiff's  duty  to  use 
reasonable  efforts  to  avoid  loss  by  securing  employment,  he  is 
not  bound  to  accept  new  employment  of  a  nature  essentially 
different  from  that  for  which  he  was  originally  employed,^  even 
from  his  former  employer.* 

Instead  of  suing  for  the  wages  that  would  have  been  earned 
but  for  the  breach  of  the  contract,  the  remedy  prescribed  in  some 
jurisdictions  is  an  action  for  the  damages  caused  by  the  breach.^ 
This  suit  may  be  brought  either  immediately  or  at  the  expira- 
tion of  the  term.^  The  measure  of  damages  recoverable  will 
usually  be  the  contract  price  for  the  labor.^  In  jurisdictions 
where  suits  for  wages  are  allowed,  the  employee  may  choose 
which  of  the  two  remedies  he  will  pursue.^  The  rule  in  Louis- 
iana is  to  the  effect  that  the  right  to  recover  wages  for  the  un- 
expired term  of  the  contract  becomes  vested  at  once  on  its 
unwarranted  breach  by  the  employer,  and  is  not  affected  either 
by  the  acceptance  of  other  employment  or  by  a  refusal  to  return 

1  Moore  v.  Central  Foundry  Co.,  68  N.J.L.  14,  52  Atl.  292. 

« John  C.  Lewis  Co.  v.  Scott,  95  Ky.  484,  26  S.W.  192  ;  Hunt  v.  Crane,  33 
Miss.  669,  69  Am.  Dec.  381. 

'  Leatherberry  J).  Odell,  7  Fed.  641 ;  Fuchs  v.  Koerner,  107  N.Y.  529,  14  N.E. 
445. 

•  De  Loraz  v.  McDowell,  68  Hun.  170,  22  N.Y.  S.  606 ;  Jackson  v.  School 
District,  111  Iowa  20,  77  N.W.  860. 

»  Weed  V.  Burt,  78  N.Y.  191 ;  Stone  v.  Bancroft,  112  Cal.  653,  44  Pac.  1069. 

•  Hamilton  v.  Love,  supra;  Olmsted  v.  Bach,  78  Md.  132,  27  Atl.  501 ;  James 
V.  Allen  Co.,  44  Ohio  St.  226,  6  N.E.  246. 

'  Lambert  v.  Hartshorne,  65  Mo.  549 ;  Fuller  v.  Little,  61  111.  21 ;  Hamilton 
V.  Love,  supra. 

•  Fowler  v.  Armour,  24  Ala.  194 ;  Mullaly  v.  Austin,  97  Mass.  30 ;  Tyler 
Cotton  Press  Co.  r.  Chevalier,  56  Ga.  494 ;  McLean  v.  Pub.  Co.  (N.D.),  129 
N.W.  93. 


THE  CONTRACT  OF  EMPLOYMENT  27 

to  work  under  the  original  contract ;  ^  but  this  doctrine  is 
grounded  on  the  peculiar  statute  of  the  state,^  and  is  not  in  line 
with  the  commonly  accepted  rules  of  law  elsewhere. 

Where  an  employee  had  an  option  on  permanent  employment 
by  reason  of  a  contract  entered  into  in  consideration  of  for- 
bearing to  sue  for  damages  on  account  of  an  injury,  and  he  is 
discharged  without  cause,  he  may  sue  for  loss  of  earnings  since 
his  discharge,  and  for  such  earnings  as  would  have  been  re- 
ceived in  the  future,  less  probable  earnings  in  other  employment.' 

Section  12.  Grounds  for  Discharge.  —  If  the  employer  can 
successfully  defend  his  course  of  action  in  discharging  an  em- 
ployee under  contract,  no  damages  will  be  allowed,  and,  apart 
from  special  provisions  in  the  contract,  the  question  whether 
the  discharge  was  warranted  or  not  is  one  for  the  jury.^  A 
workman  of  adult  age  undertaking  to  do  a  piece  of  work  is  pre- 
sumed to  be  competent,  and  incompetency  is  a  sufficient  ground 
for  discharge,  whether  he  made  representations  as  to  his  com- 
petency,^ or  whether  it  was  merely  presumed.*  The  word 
"  colhpetency,"  as  used  in  this  connection,  is  not  to  be  taken  in  an 
absolute  sense,  however,  and  imports  nothing  more  than  reason- 
able skill.^  Where  an  employer  alleges  incompetence  as  the 
ground  for  breaking  a  contract,  the  burden  of  proof  is  on  him.* 

'  Curtis  V.  A.  Lehman  Co.,  115  La.  40,  38  So.  887  ;  Camp  v.  Baldwin-Melville 
Co.,  123  La.  257,  48  So.  927.  '  La.,  Civ.  Code,  art.  2749. 

'  Rhoadea  v.  Chesapeake  &  O.R.  Co.,  49  W.  Va.  494,  39  S.E.  209. 

*  Lippus  V.  Watch  Co.,  7  N.  Y.  Supp.  478 ;  Echols  v.  Fleming,  58  Ga.  156. 

'  Mexican  Amole  Soap  Co.  v.  Clark,  72  111.  App.  655 ;  Anstce  v.  Ober,  26  Mo. 
665. 

«  Lyon  V.  Pollard,  20  Wall.  403  (U.S.) ;  Keedy  v.  Long,  71  Md.  385,  18  Atl.  704. 

'  Crescent  Horseshoe  Co.  v.  Eynon,  95  Va.  151,  27  S.E.  935  ;  Walton  v.  God- 
win, 58  Hun  87,  11  N.Y.  Supp.  391. 

•  Mexclbaum  v.  Limbcrger,  78  Ga.  43,  3  S.E.  257  ;  Franklin  v.  Lumber  Co., 
66  W.  Va.  104,  66  S.E.  225. 


28  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

An  employee  must,  however,  perform  the  duties  for  which  he 
contracted  with  a  degree  of  skill  suited  to  the  terms  of  his  con- 
tract for  the  undertaking  in  hand,  and  he  cannot,  if  discharged 
for  incompetency,  plead  performance  with  ordinary  skill. ^ 

Where  a  contract  is  for  a  definite  term,  and  a  provision  is 
made  that  the  service  shall  be  satisfactory  to  the  employer,  the 
decision  of  the  latter  is  final  if  he  is  in  good  faith  dissatisfied ;  ^ 
though  in  some  cases  it  is  held  that  the  employer  is  the  sole 
judge,  and  that  no  question  of  good  faith  can  be  raised.^  This 
is  opposed  by  the  view  held  in  a  case  involving  the  breach  of  a 
contract  for  permanent  employment,  conditioned  on  the  em- 
ployee giving  satisfaction  to  his  foreman  or  superintendent ;  it 
was  here  said  that  the  burden  of  proof  was  on  the  employer  to 
show  good  cause  for  the  discharge,  the  appellate  court  refusing 
to  set  aside  a  verdict  of  the  trial  court  in  the  discharged  em- 
ployee's favor.*  If  the  dissatisfaction  is  genuine,  it  is  not 
material  that  it  is  not  well  founded ;  ^  nor  is  the  employer 
restricted,  in  his  defense  to  an  action,  to  the  cause  originally 
assigned  as  the  reason  for  the  discharge,  but  may  adduce  other 
reasons,®  even  if  they  were  not  known  to  him  at  the  time  of  the 
discharge.' 

One  state  undertakes  to  regulate  discharges  by  providing  that 

»  Hatton  V.  Mountford,  105  Va.  96,  52  S.E.  847. 

>  Koehler  v.  Buhl,  94  Mich.  496,  54  N.W.  157  ;  Frary  v.  Rubber  Co.,  52  Minn. 
264,  53  N.W.  1156  ;  Mackenzie  v.  Minis,  132  Ga.  323,  63  S.E.  900. 

'  Allen  XI.  Compress  Co.,  101  Ala.  574,  14  So.  362 ;  Crawford  v.  Pub.  Co.,  163 
N.Y.  404,  57  N.E.  616. 

*  Rhoades  v.  Chesapeake  &  O.R.  Co..  49  W.  Va.  494,  39  S.E.  209. 

»  Mackenzie  v.  Minis,  supra. 

«  Corgan  v.  Coal  Co.,  218  Pa.  386,  67  Atl.  655. 

''  Von  Heyne  v.  Tompkins,  89  Minn.  77,  93  N.W.  901 ;  Loos  r.  Brewing  Co., 
145  Wis.  1,  129  N.W.  645.  See  Wood's  "  Master  and  Servant,"  2d  ed.,  sec. 
121. 


THE  CONTRACT  OF  EMPLOYMENT  29 

no  employee  between  the  ages  of  eighteen  and  sixty  shall  be 
discharged  solely  on  account  of  age.^ 

In  a  general  contract  of  hiring,  without  reference  to  the  term, 
an  agreement  not  to  suspend  or  discharge  without  just  and  suf- 
ficient cause  is  not  a  restriction  against  discharge  at  the  em- 
ployer's option ;  ^  but  if  the  employment  is  for  a  term,  the  mere 
fact  of  general  misconduct  on  the  part  of  the  employee  is  not 
sufficient  ground  for  discharge  unless  it  is  made  to  appear  that 
it  is  misconduct  in  connection  with  his  employment  or  is  of  such 
a  nature  as  to  prejudice  his  employer's  interests.^  Willful 
disobedience  of  reasonable  and  lawful  orders,*  or  other  viola- 
tion of  the  implied  terms  of  the  contract  (seel),  as  well  as 
violation  of  its  express  terms,  will,  if  proved,  generally  be  a 
sufficient  defense  for  an  employer  in  an  action  for  damages  for  a 
breach  of  the  contract.  If  it  can  be  shown  that  the  disobedi- 
ence was  not  of  a  nature  to  injuriously  affect  his  employer,  it  has 
been  held  that  the  employee  may  still  recover  damages,  as  he  is 
entitled  to  some  measure  of  self-direction,^  especially  if  skilled.' 

It  will  be  regarded  as  a  breach  of  the  contract  by  the  employer 
if  he  violates  its  terms,  express  or  implied,  as  by  requiring  other 
service  than  that  contracted  for ; '  though  it  has  been  said  that 
this  alone  will  not  amount  to  a  breach,  so  long  as  the  employee 
is  permitted  to  perform  the  work  for  which  he  was  hired ;  ^  nor, 

»  Colo.,  Supp.  sec.  2801c2. 

«  St.  Louis,  I.  M.  &  S.  R.  Co.  r.  Mathews,  64  Ark.  398,  42  S.W.  902. 

»  Child  V.  Boyd,  etc.,  Mfg.  Co.,  175  Mass.  493,  56  N.E.  608. 

*  Forsyth  v.  McKinney,  56  Hun  1.  8  N.Y.  Supp.  561. 

'Shaver  v.  Ingham,  58  Mich.  649,  26  N.W.  162;  Hamilton  v.  Love, 
43  N.E.  873  (Ind.). 

•  Park  V.  Bushnell,  60  Fed.  583,  9  CCA.  138. 
T  Baron  v.  Placide,  7  La.  Ann.  229. 

«  Koplitz  V.  Powell,  56  Wis.  671,  14  N.W.  831. 


30  LAW  OF  THE  EMPLOYMENT  OF  LABOR  , 

on  the  other  hand,  can  the  employee's  refusal  to  do  work  out- 
side the  scope  of  his  employment  be  made  a  ground  for  dis- 
charge.^ Where  the  order  to  do  the  new  work  is  coupled  with 
a  refusal  to  permit  the  performance  of  the  work  contracted  for, 
there  is  a  breach  for  which  an  action  will  lie ;  ^  so  also  where  the 
employer  restricts  the  employee's  rights  under  the  contract,^  or 
does  other  acts  prejudicial  to  the  employee's  safety,  morals, 
or  reputation.  The  modification  of  the  conditions  of  employ- 
ment is  in  effect  making  a  new  contract,  and  will  involve  the 
necessity  of  proving  a  sufficient  consideration  to  support  it.* 
In  case  of  a  contract  terminable  at  will,  continuance  in  em- 
ployment with  knowledge  of  the  modification  is  considered  an 
acceptance  of  the  new  terms.^  Neither  party  can  recover 
damages  for  the  breach  of  a  contract  which  contravenes  pubUc 
pohcy. 

Section  13.  Other  Methods  of  Dissolving  the  Contract  Rela- 
tion. —  Besides  abandonment  of  the  contract  by  the  employee 
or  its  breach  by  the  employer,  ordinary  contracts  of  employ- 
ment may  be  terminated,  without  entailing  liabiUty  on  either 
party  beyond  the  payment  of  wages  earned  up  to  the  time  of 
dissolution,  by  mutual  consent ;  ®  by  the  expiration  of  the  con- 
tract period,  after  which  an  employee  seeking  to  recover  wages 
for  services  rendered  must  show  that  the  contract  was  renewed 
or  extended,  either  expressly  or  by  implication ;  ^  by  the  death 

'  Loos  V.  Brewing  Co.,  supra;  Koplitz  v.  Powell,  supra. 

'Cooper  V.  Stronge  &  Warner  Co.,  Ill  Minn.  177,  126  N.W.  541 ;  Marx  v. 
MUler,  134  Ala.  347,  32  So.  765. 

'  Baldwin  v.  Marqueze,  91  Ga.  404,  18  S.E.  309. 
*  Davis  V.  Morgan,  117  Ga.  504,  43  S.E.  732. 
»  Norton  v.  Brookline,  181  Mass.  360,  63  N.E.  930. 
«  Patnote  v.  Sanders,  41  Vt.  66,  98  Am.  Dec.  564. 
»  Ewing  V.  Janson,  57  Ark.  237,  21  S.W.  430. 


THE   CONTRACT  OF  EMPLOYMENT  31 

or  continued  sickness  of  the  employee ;  ^  or  by  the  occurrence 
of  some  event  for  which  neither  party  is  responsible,  which 
makes  the  rendering  of  the  service  impossible  or  unreasonable 
and  out  of  consonance  with  the  original  intent  of  the  parties.^ 
The  mere  fact  that  an  undertaking  develops  greater  difficulties 
than  were  contemplated  at  the  time  the  contract  was  entered 
into  will  not  operate  to  dissolve  it,  however,'  but  for  an 
employer  to  refuse  to  accept  services  except  of  a  nature  and 
under  conditions  violative  of  the  terms  of  the  contract  is  in 
effect  a  breach,''  for  which  the  employer  is  liable  as  above 
stated.     (Sec.  11.) 

While  the  death  or  sickness  of  an  employee,  preventing  the 
fulfillment  of  a  contract,  operates  to  terminate  it,  the  assump- 
tion being  that  the  contract  is  for  his  personal  services  and  not 
for  those  of  a  substitute  to  be  furnished  by  him  or  his  personal 
representative,^  the  rule  is  not  well  fixed  where  the  case  is  one 
of  the  death  of  the  employer.  Some  authorities  hold  that  the  re- 
lation is  so  strictly  a  personal  one  that  the  death  of  the  employer 
effects  a  dissolution,®  while  in  other  cases  a  contrary  position 
has  been  taken.''  Acceptance  of  services,  either  by  a  surviving 
partner  or  by  the  personal  representative  of  the  decedent, 

1  Dickey  v.  Linscott,  20  Me.  453,  37  Am.  Dec.  66 ;  Clark  v.  Gilbert,  26  N.Y. 
283,  84  Am.  Dec.  189. 

»  Jones  r.  Judd,  4  N.Y.  411. 

» .\ngle  V.  Hanna,  22  111.  429,  74  Am.  Dec.  161 ;  Carr  r».  Coal  Co.,  25  Pa.  St. 
337. 

*  Curtis  V.  A.  Lehman  Co.,  1 15  La.  40,  38  So.  887  ;  Marx  r.  Miller,  134  Ala.  347, 
32  So.  765. 

'  O'Connor  v.  Briggs,  182  Mass.  387,  65  N.E.  836. 

•  Lacey  v.  Getman,  119  N.Y.  109,  23  N.E.  426  ;  Griggs  v.  Swift,  82  Ga.  392, 14 
Am.  St.  Rep.  176  ;  In  re  McPhee's  Estate,  156  Cal.  335,  104  Pac.  455.  Cal.  Civ. 
Code,  sec.  1996. 

'  PhcBbe  V.  Jay,  1  111.  268  ;  Hill  v.  Robeson,  10  Mies.  541. 


32  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

would  at  least  entitle  an  employee  to  a  quantum  meruit/  while 
other  courts  exact  payment  as  provided  for  by  the  original  con- 
tract.2  'Phe  insolvency  of  an  employer  occurring  after  the 
formation  of  a  contract  does  not  put  an  end  thereto,'  nor  does 
his  insanity/  though  as  to  matters  of  the  latter  nature,  it  may  be 
said  that  considerations  that  are  personal  to  individual  em- 
ployers are  of  less  general  importance  with  the  enlargement  of 
the  scope  of  the  operations  of  incorporated  concerns  in  the 
conduct  of  business. 

I  Either  custom  or  contract  may  provide  for  the  rescission  of  the 
contract  by  notice.  In  such  cases  the  law  favors  mutuality,  so 
that  employer  and  employee  shall  stand  on  an  equal  footing  as 
to  length  of  notice  required  and  the  forfeiture  of  wages,  which 
is  the  usual  penalty  for  the  violation  of  the  agreement.*  A 
usual  custom  is  one  that  requires  notice  for  a  length  of  time 
equal  to  the  interval  between  pay-days.  Where  a  rule  of  the 
employer  is  offered  in  evidence,  it  is  for  the  jury  to  decide 
whether  the  employee  was  properly  instructed  as  to  such  rule 
so  as  to  be  bound  thereby.®  Failure  to  give  notice  in  accord- 
ance with  the  terms  of  a  contract  is  such  a  violation  thereof  as 
to  prevent  the  recovery  of  wages  earned  before  the  breach ; ' 
though  it  has  been  held  that  the  abandonment  of  a  contract 
without  having  given  the  agreed  notice  does  not  forfeit  the 
wages  earned,  but  only  makes  the  employee  liable  for  any  dam- 

'  Louis  V.  Elfelt,  89  Cal.  547,  26  Pac.  1095. 

2  Toland  v.  Stevenson,  59  Ind.  485 ;  Ferira  v.  Sayres,  5  Watts  &  S.  210  (Pa.), 
40  Am.  Dec.  496. 

» In  re  Silverman,  101  Fed.  219 ;  Vanuxem  v.  Bostwick,  4  Pa.  Cas.  532, 40  Am. 
Dec.  598.  ■•  Sands  v.  Potter,  165  111.  397,  56  Am.  St.  Rep.  253. 

'  Fawcett  v.  Cash,  5  B.  &  Ad.  904. 

•  Diamond  State  Iron  Co.  v.  Bell,  2  Marvel  303  (Del.),  43  Atl.  161. 

'  Naylor  v.  Iron  Works,  118  Mass.  317. 


THE  CONTRACT  OF  EMPLOYMENT  33 

ages  caused  by  such  abandonment.^  The  employer  is  liable 
in  damages  to  an  employee  discharged  without  the  agreed  notice, 
the  measure  of  damages  being  the  wages  the  employee  would 
have  earned  during  the  period  of  the  notice,  subject  to  the  same 
rules  as  in  the  case  of  the  violation  of  a  contract  for  a  fixed 
period ;  ^  so  also  an  employee  quitting  without  notice  in  viola- 
tion of  his  agreement  will  be  held  to  a  contract  to  forfeit  the 
wages  for  the  period  agreed  upon.^ 

The  matter  of  notice  has  been  made  the  subject  of  legislation 
in  a  few  states,  the  uniform  provision  of  the  laws  being  that  the 
obligations  as  to  time  of  notice  and  amount  of  forfeiture  shall 
be  reciprocal ;  *  while  a  Connecticut  statute  ^  prohibits  the  re- 
tention of  wages  because  of  failure  to  give  notice,  even  where 
there  was  an  agreement  requiring  notice  to  be  given. 

Section  14.  Clearance  Cards.  —  The  practice  of  asking  for 
a  clearance  card  or  a  letter  of  recommendation  before  engaging 
an  applicant  for  employment  does  not,  in  the  absence  of  custom, 
affect  employers  to  the  extent  of  requiring  them  to  furnish  such 
cards  or  letters  to  employees  at  the  termination  of  their  employ- 
ment.' If,  however,  there  is  a  custom  to  give  such  cards,  and 
the  contract  was  made  with  mutual  knowledge  thereof,  an  ac- 
tion lies  for  the  failure  to  give  one  on  the  discharge  of  an  em- 
ployee.^   The  courts  will  take  judicial  cognizance  of  the  fact 

>  Hunt  V.  Otis  Co..  4  Mete.  464  (Mass.). 
«  Babcoek  v.  Appleton  Mfg.  Co..  93  Wis.  124,  67  N.W.  33. 
»  Fisher  v.  Wabh,  102  Wis.  172,  78  N.W.  437 ;   Willis  v.  Muscogee  Mfg.  Co., 
120  Ga.  597,  48  S.  E.  177. 

*  Me.,  R.S.  ch.  40.  sec.  51 ;  Mass.  Acts  1909.  ch.  514.  sec.  120;  N.J..  G.S.  p. 
2351,  Acts  1904.  ch.  64.  sec.  27  ;  Pa..  B.  P.  Dig.  p.  2073  ;  R.I..  G.L.  ch.  198,  sec. 
25 :  Wis..  A.S..  sec.  1728m.  «  G.S.  sec.  4694. 

•  New  York.  C.  &  St.  L.  R.  Co.  v.  Schaffer.  65  Ohio  St.  414,  62  N.E.  1036; 
Cleveland.  C.  C.  &  St.  L.  R.  Co.  v.  Jenkins,  174  111.  398.  51  N.E.  811. 

'  Hundley  v.  Louisville,  etc.,  R.  Co.,  105  Ky.  162,  48  S.W.  429. 
D 


34  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

that  such  a  card  is  not  necessarily  a  recommendation,  but  is 
rather  a  statement  of  the  cause  of  the  termination  of  the  em- 
ployment, together  with  such  other  facts,  whether  favorable  or 
unfavorable  to  the  employee,  as  the  employer  may  see  fit  to 
incorporate.^  Malicious  falsity  of  statement,  or  even  known 
falsity  without  malice,  would  probably  give  a  right  of  action 
against  an  employer  making  such  statements  as  to  the  reason 
for  discharge,  at  least  where  they  result  in  preventing  the  em- 
ployee from  securing  employment.^ 

The  legislatures  of  some  states  have  undertaken  to  compel  the 
furnishing  of  a  statement  of  the  cause  of  discharge,  when  re- 
quested by  the  employee.'  In  a  case  in  which  the  constitution- 
ality of  a  statute  of  this  character  was  challenged,  the  court  held 
that  as  the  desired  credentials  were  intended  not  for  public,  but 
for  private  information,  the  law  commanding  that  they  be  fur- 
nished was  void,  as  violating  the  right  of  the  liberty  of  silence, 
which  is  involved  in  the  right  of  the  liberty  of  speech ;  saying 
that  "compulsory  private  discovery,  even  from  corporations, 
enforced,  not  by  suit  or  action,  but  by  statutory  terror,  is  not 
allowable  where  rights  are  under  the  guardianship  of  due  pro- 
cess of  law."  *  By  like  reasoning  the  supreme  court  of  Kansas 
held  that  a  similar  law  was  unconstitutional ;  ^  while  a  lower 
court  of  the  state  of  Ohio  held  that  failure  to  furnish  an  em- 
ployee with  a  written  statement  of  the  reason  for  his  discharge 
did  not  make  the  employer  liable  in  a  civil  action  for  the  penalty 

*  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Jenkins,  supra;  McDonald  v.  Illinois  C. 
R.  Co.,  187  111.  529,  58  N.E.  463. 

*  Hundley  v.  Louisville,  etc.,  R.  Co.,  supra. 

»Fla.,  G.L.  sec.  2856;  Ind.,  A.S.  sec.  7078;  Mo.,  Acts  1905,  p.  178;  Mont., 
A.C.  sec.  3392  ;  Ohio,  Gen.  Code.  sec.  9012  ;  Texas,  Acts  1907,  ch.  67. 

*  Wallace  v.  Georgia,  C.  &  N.  R.  Co.,  94  Ga.  732,  22  So.  579. 

»  Atchison,  T.  &  S.  F.  R.  Co.  v.  Brown,  80  Kans.  312,  102  Pac.  459. 


THE  CONTRACT  OF  EMPLOYMENT  35 

provided  for  the  violation  of  the  statute,  thereby  making  the 
law  of  no  effect.^  The  Texas  statute  cited  above  was  sustained 
as  a  constitutional  enactment  in  a  case  in  which  the  doctrine  of 
the  Wallace  case  was  expressly  rejected,  and  a  judgment  for 
damages  against  a  railroad  company  for  refusing  to  state  fairly 
the  reason  for  an  employee's  discharge  affirmed.^  Without  dis- 
cussing the  constitutionality  of  the  statute,  this  judgment  was, 
on  appeal,  reversed,  since  the  employer  need  only  state  truly 
his  reason  for  discharge,  without  detail  as  to  circumstances, 
even  though  another  person  might  draw  a  different  conclusion 
therefrom  as  to  the  nature  of  the  employee's  conduct.^ 

In  a  few  states  the  forgery  of  employers'  certificates  or  clear- 
ance cards  is  specifically  made  an  offense.'' 

Section  15.  Procuring  Breach  of  Contract.  —  If  a  third  per- 
son unjustifiably  interferes  with  a  contract  of  employment, 
either  by  persuading  an  employee  to  break  a  known  contract,  or 
by  procuring  the  discharge  of  an  employee,  the  injured  party 
has  a  right  of  action  against  such  person  for  damages  caused  by 
his  interference.^  And  this  is  true  even  though  the  contract  was 
terminable  at  the  option  of  the  parties.®  It  is  therefore  of  no 
advantage  to  the  defendant  to  show  that  the  employer  himself 

•  Crall  V.  Toledo  &  O.  C.  R.  Co.,  7  C.  C.  Rep.  132. 

»  St.  Louis  S.  W.  R.  Co.  v.  Hixon.  126  S.W.  338  (Tex.  Civ.  App.). 

«  Same  case,  137  S.  W.  343  (Tex.). 

<  Ga.,  Acts  1899,  p.  79 ;   Minn.,  R.L.  sec.  5053  ;  Wis.,  A.S.  sec.  4464b. 

•Lumley  v.  Gye,  2  El.  &  Bl.  216;  Jones  v.  Leslie,  (Wash.)  112  Pac.  81; 
Bixby  V.  Dunlap,  56  N.H.  456,  22  Am.  Rep.  475 ;  Walker  v.  Cronin,  107  Mass. 
655;  Angle  v.  Chicago,  etc.,  R.  Co.,  151  U.S.  1,  14  Sup.  Ct.  240;  Huskie  t. 
GrifEn,  75  N.H.  345,  74  Atl.  595. 

•  Chipley  r.  Atkinson,  23  Fla.  206,  1  So.  934  ;  Lucke  v.  Clothing  Cutters,  etc., 
77  Md.  396,  26  Atl.  505 ;  Per  contra.  Holder  v.  Cannon  Mfg.  Co.,  138  N.C.  308, 50 
S.E.  681. 


36  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

incurs  no  liability  by  discharging  his  employee ;  ^  nor  is  it  ma- 
terial, so  far  as  the  right  of  action  of  a  discharged  person  is  con- 
cerned, whether  his  discharge  is  procured  by  fraud  or  intimida- 
tion, or  merely  by  successful  persuasion.^ 

In  an  action  by  an  employee  to  procure  damages  for  causing 
his  discharge,  the  declaration  is  usually  made  that  it  was  will- 
fully and  maliciously  procured ;  but  this  signifies  nothing  more 
than  that  the  act  was  knowingly  done  to  the  apparent  damage 
of  the  person  discharged,  and  without  lawful  justification  on  the 
part  of  the  instigator,  i.e.,  as  of  competition  in  trade  or  employ- 
ment.' Where  the  defendant  did  nothing  more  than  to  an- 
swer an  inquiry  of  an  employer,  stating  such  facts  as  led  to  the 
discharge  of  the  plaintiff,  no  damages  can  be  recovered.^  So  the 
mere  imparting  of  information,  in  the  absence  of  fraud  or  co- 
ercion, gives  rise  to  no  liability,  though  it  in  effect  leads  to  a 
discharge.^  The  question  of  motive  may  be  properly  consid- 
ered, and  may  be  decisive  in  a  given  case,"  though  the  mere  fact 
of  bad  intent  does  not  make  that  actionable  which  does  not 
amount  to  a  legal  injury. '^  Where,  however,  there  is  an  improper 
and  malicious  motive,  not  only  actual  but  also  exemplary  dam- 
ages may  be  recovered.^  The  communication  to  the  employer 
need  not  be  Ubelous  per  se,  but  if  it  is  effective  in  procuring  the 

»  Moran  v.  Dunphy,  177  Mass.  485,  59  N.E.  126. 
'  Moran  v.  Dunphy,  supra. 

'Haskins  v.  Royster,  70  N.C.  601,  16  Am.  Rep.  780;  London  Guarantee, 
etc.,  Co.  V.  Horn,  206  lU.  493,  69  N.E.  526. 

*  Wabash  R.  Co.  v.  Young,  162  Ind.  102,  69  N.E.  1003. 

s  Baker  v.  Insurance  Co.,  23  Ky.  L.  R.  1174,  1178,  64  S.W.  913,  967. 
«  Moran  v.   Dunphy,  supra;    Gibson  v.  Fidelity  &  Casualty  Co.,  232    111. 
49,  83  N.E.  539  ;  Plant  v.  Woods,  176  Mass.  504,  57  N.E.  1011. 
» Allen  V.  Flood,  67  L.J.Q.B.  119. 

•  Gibson  v.  Fidelity  &  Casualty  Co.,  suin-a. 


THE  CONTRACT  OF  EMPLOYMENT  37 

discharge  of  the  employee  to  his  loss  and  damage,  its  publication 
is  actionable.^  Where,  however,  a  discharge  is  procured  on  the 
basis  of  representations  as  to  misconduct  on  the  part  of  an 
employee,  the  charges  being  verified  on  investigation  by  the 
employer,  the  informant  is  not  liable  in  damages,  nor  does  the 
fact  that  he  bore  ill  will  to  the  discharged  employee  make  him 
S0.2  In  fact,  some  courts  have  denied  that  motive  should  be 
considered  in  connection  with  cases  of  this  nature,'  since  if  an 
act  is  injurious  and  unlawful,  it  is  actionable,  irrespective  of 
motive,  and  whether  malicious  or  not ;  while  if  not  unlawful  or 
injurious,  it  is  not  actionable,  however  maliciously  performed.* 
In  another  case  it  was  said  that  motive  is  immaterial  where  the 
acts  considered  are  lawful,  but  if  done  A\ithout  legitimate  in- 
terests to  protect,  it  is  unlawful  to  maliciously  injure  another's 
business.^  The  differences  would  seem  to  be  more  apparent 
than  real,  though  obviously  some  courts  lay  considerable  stress 
on  the  question  of  motive ;  but  the  rule  seems  well  stated  in  a 
British  case,  in  which  it  was  said  that  an  act  which  does  not 
amount  to  a  legal  injury  cannot  be  actionable  because  done 
with  a  bad  intent.^ 

So  if  an  employer  brings  action  on  the  ground  of  enticement, 
he  must  show  that  the  act  was  ^villful  or  intentional,  and  that  it 
did  injure,  or  was  calculated  to  injure  him,  the  actor  being  with- 
out a  justifiable  cause.     Malice  is  said  to  be  of  the  essence  of 

'  Hollenbcck  v.  Ristinc,  105  Iowa.  488,  75  N.W.  355. 
'  Lancaster  v.  Hamburger,  70  Ohio  St.  156,  71  N.E.  289. 

>  Macauley  u.Tierney,  19  R.I.  255,  33  Atl.  1  ;  Bohn  Mfg.  Co.  v.  Holli3,54  Minn. 
223,55  N.W.  1119. 

*  Payne  v.  Western  &  Atlantic  R.  Co.,  13  Lea  507  (Tenn.). 
»  Ertz  V.  Produce  Exchange,  79  Minn.  140,  81  N.W.  737. 

•  Stevenson  v.  Newnham,  13  C.B.  285  ;  Allen  v.  Flood,  supra. 


38  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

such  an  action,  but  the  charge  of  malice  is  supported  by  show- 
ing that  there  was  notice  of  the  contract  of  employment,  and 
that  the  employee  has  been  persuaded  not  to  enter  into  or  con- 
tinue in  the  service  contemplated  thereby.  The  retention  of 
an  employee  whose  services  are  due  to  another  under  an  existing 
contract,  after  knowledge  of  such  contract,  even  though  the 
second  employer  did  not  know  at  the  time  of  the  engagement 
that  such  a  contract  was  in  existence,  is  ground  for  action.^  Con- 
tracts for  piece  work,  where  the  work  agreed  for  is  abandoned 
in  an  incomplete  condition,  are  on  the  same  footing  as  con- 
tracts for  a  fixed  term.'^  This  principle  is  held  also  to  apply 
to  employees  engaged  for  a  season,  as  for  the  making  of  a  crop.' 
Where  a  contract  has  been  entered  into,  it  is  not  necessary  for 
the  maintenance  of  an  action  that  the  rendition  of  the  service 
be  actually  begun ;  ^  but  there  must  be  a  knowledge  of  the 
contract,  since  intent  to  deprive  the  employer  of  service  must 
be  shown.^  Where  service  is  actually  being  rendered,  there 
need  not  be  a  binding  contract  to  support  the  action,  since  the 
employer  is  none  the  less  entitled  to  at  least  the  opportunity  for 
the  services  of  an  employee  merely  at  will  ^  or  one  under  a  con- 
tract which  could  not  be  enforced  against  him,  as  of  a  minor, 
without  being  required  to  submit  to  officious  interruptions  by 
third  parties.''  But  a  mere  attempt  without  damage  will 
support  no  action,^     Where  the  employee  has  violated  a  void- 

1  Butterfield  v.  Ashley,  6  Cush.  249  (Mass.) ;  Campbell  v.  Cooper,  34  N.H.  49. 
»  Walker  v.  Cronin,  107  Mass.  555. 

'  Haskins  v.  Royster,  70  N.C.  601,  16  Am.  Rep.  780 ;  Daniel  v.  Swearengen, 
6  S.C.  297,  24  Am.  Rep.  471.  *  Lumley  v.  Gye,  2  El.  &  Bl.  216. 

'  Butterfield  v.  Ashley,  supra. 

•  Salter  v.  Howard,  53  Ga. ;  Frank  v.  Herold,  63  N.  J.  Eq.  443,  52  Atl.  152. 
7  Wood,  M.  &  S.,  2d  ed.,  sec.  234  ;  Keane  v.  Boycott,  2  H.  Bl.  511. 
»  Hool  V.  Dorroh,  75  Miss.  257,  22  So.  829. 


THE  CONTRACT  OF  EMPLOYMENT  39 

able  contract  of  his  own  volition,  or  left  service  under  a  contract 
at  will,  no  action  lies  against  a  subsequent  employer ;  ^  so  also 
if  there  is  an  agreement  to  employ  at  the  expiration  of  a  terra  of 
hiring,  even  though  otherwise  a  renewal  of  the  contract  might 
reasonably  be  expected.^ 

Section  16.  Statutes  Forbidding  Interference  with  Contracts.  — 
The  same  economic  conditions  that  led  to  the  enactment  of  laws 
which  attempt  to  prevent  the  violation  of  contracts,  especially 
where  advances  are  involved,  doubtless  give  rise  to  laws  di- 
rected against  the  enticement  of  employees  who  are  under  con- 
tract for  a  given  time.'  These  aim  their  penalties  at  "any 
person  who  knowingly  interferes  with,  hires,  employs,  entices 
away  or  induces"  an  employee  to  leave  the  service  of  another, 
or  similar  acts  less  particularly  enumerated,  and  have  been  held 
constitutional.'*  The  attempt  entails  the  same  penalty  as  the 
actual  performance  under  the  Alabama  and  Georgia  statutes. 
The  penalties  are  either  fine  or  imprisonment,  and  may  or  may 
not  be  coupled  with  a  liability  for  any  advances  made  to  the 
inveigled  employee,  or  for  damages  suffered  by  reason  of  the 
commission  of  the  prohibited  act.  The  right  of  action  in  dam- 
ages is  the  only  redress  given  in  some  states,  thus  making  it  only 
civilly  and  not  criminally  actionable. 

In  so  far  as  this  action  alone  is  contemplated,  the  statute  only 

»  Langham  v.  State,  55  Ala.  114  ;  Campbell  v.  Cooper,  34  N.H.  49. 

*  Boston  Glass  Co.  v.  Binnoy,  21  Mass.  (4  Pick.)  425. 

'  Ala.  Code,  sec.  6850  ;  Ark.,  Acts,  1905,  No.  298  ;  Fla.,  G.S.,  sec.  3232  ;  Ga., 
Penal  Code,  sees.  121,  122.  Act  No.  390,  Acts  of  1901;  Ky.  Stat.,  sec.  1349; 
La.,  Acts,  1906,  No.  54  ;  Miss.,  Code,  sec.  1146  ;  S.C,  Cr.  Code,  sec.  359  ;  N.C., 
Revisal,  sec.  3365;  Tenn.,  Code,  sec.  4337. 

<  Tarpley  v.  State,  79  Ala.  271,  Murrcll's  Case,  44  Ala.  367;  Hool  v.  Dorroh, 
76  Miss.  257,  22  So.  829.  Hightower  v.  State,  72  Ga.  482 ;  Per  contra,  Peonage 
Cases,  123  Fed.  671  (Ala.  Stat.). 


40  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

enforces  the  common  law  right,  and  actual  damage  must  still 
be  shown. ^  Damages  recoverable  do  not  include  debts  due 
the  employer  or  landlord.'^  The  statute  may  prohibit  the  en- 
ticement of  any  one  to  leave  his  employer,  or  hiring  him  before 
the  expiration  of  his  contract,  without  the  consent  of  the  em- 
ployer. Under  this  law  there  is  no  offense  where  the  employee 
has  not  actually  entered  on  the  service.'  On  the  other  hand,  a 
second  employer  has  been  held  liable  for  employing  one  before 
the  expiration  of  his  contract,  regardless  of  the  fact  that  the 
employee  had  already  broken  his  contract,^  the  statute  prohibit- 
ing such  employment  without  the  former  employer's  consent. 
This  agrees  with  the  doctrine  of  the  case  at  common  law  of 
Butterfield  v.  Ashley,  supra.  In  other  cases  ^  it  was  held  that 
there  was  no  ground  for  criminal  action  for  the  mere  employ- 
ment of  one  who  had  left  his  former  master.  A  statute  of  the 
United  States  on  this  subject  makes  it  an  offense  to  procure  or 
entice  any  artificer  or  workman  employed  by  the  United  States 
in  any  arsenal  or  armory  to  depart  from  his  work  during  the 
term  of  his  contract  of  employment,  or,  after  notice  of  such 
contract,  to  retain,  hire,  or  conceal  such  workman.^  It  is  ob- 
vious that  such  statutes  must  be  construed  strictly  according 
to  their  language,  so  that  no  generally  applicable  rule  can  be 
laid  down. 

The  interference  may  be  prohibited  no  less  for  the  safety  of 

*  Hool  V.  Dorroh,  supra. 

«  Chrestman  v.  Russell,  73  Miss.  452,  18  So.  656. 
»  Hendrix  ti.  State,  79  Miss.  368,  30  So.  708. 

*  Armistead  v.  Chatters,  71  Miss.  509,  15  So.  39.     See  also  Tarpley  v.  State, 
supra. 

'Jackson  v.  State,  16  So.  299  (Miss.) ;   Morris  v.  Neville,  79  Tenn.  (11  Lea) 
271. 

*  35  Stat.  1097,  Comp.  Stat.  Supp.  p.  1404. 


THE  CONTRACT  OF  EMPLOYMENT  41 

person  and  property  than  for  the  sake  of  procuring  the  comple- 
tion of  a  labor  contract  as  ordinarily  understood.  Laws  of  this 
sort  are  to  be  found  in  connection  with  mine  regulations,  for- 
bidding the  intimidation  of  or  the  interference  with  hoisting 
engineers ;  *  or  with  the  performance  of  the  duties  of  railroad 
employees,'^  or  of  employees  of  other  quasi-public  corporations.' 

The  giving  of  gifts  or  gratuities  to  an  employee  with  intent  to 
influence  him  in  relation  to  his  employer's  business,  or  the 
acceptance  by  employees  of  such  gifts  is  prohibited  by  statutes 
of  recent  enactment  in  a  number  of  states ;  *  so  also  of  bonuses 
or  discounts  to  employees  who  purchase  supplies  or  materials 
for  their  employers,  under  most  of  the  laws  cited ;  the  same 
prohibition  may  be  applied  to  the  giving  or  receiving  of  tips  in 
hotels  or  on  common  carriers.^  A  dealer  allowing  an  employee 
a  discount  in  violation  of  such  a  statute  cannot  recover  any- 
thing on  his  contract,  the  entire  contract  being  made  void  by 
the  illegal  act  of  granting  discount.^ 

While  these  statutes  are  mentioned  here  on  account  of  their 
close  relation  to  each  other,  it  is  clear  that  they  are  not  all 
designed  strictly  to  prevent  interference  with  employment,  but 
to  protect  in  a  manner  the  financial  interests  of  the  employer 
and  of  the  public. 

Where  intimidation  is  practiced  in  the  interference,  not  only 
is  there  civil  liability,  but  such  conduct  is  declared  a  penal  offense 

>  Ala.,  Code,  sec.  1029 ;  Ind.,  Acts  1905,  ch.  50,  sec.  10. 

»  Del.,  R.C.  p.  928 ;  111.,  R.S.  ch.  114,  sec.  109  ;  Kans.,  G.S.  sec.  2375. 

»  Me.,  R.S.  ch.  124,  sec.  9. 

*  N.J.,  Acts  1909,  ch.  284;  Wash.,  Acts  1909,  ch.  249,  sees.  426,  427;  Conn., 
Acts  1905,  ch.  99 ;  Iowa,  Acts  1907,  chs.  183,  184  ;   N.Y.,  C.L.  ch.  40,  sec.  439. 

»  Wash.,  Acts  1909,  ch.  249,  sees.  439,  440. 

•  General  Tire  Repair  Co.  r.  Price,  115  N.  Y.  Supp.  171. 


42  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

by  the  statutes  of  a  number  of  states.  Inasmuch  as  this  phase 
of  the  question  is  frequently  introduced  into  cases  involving  the 
activities  and  rights  of  strikers,  its  discussion  will  be  deferred 
until  the  subject  of  labor  organizations  is  taken  up. 

Section  17.  Right  of  Employer  to  Recover  for  Injuries  to 
Employee.  —  A  doctrine  that  is  obviously  rooted  in  the  older 
view  of  close  personal  relationships  is  one  that  gives  the  em- 
ployer a  right  of  action  against  a  third  person  who  injures  his 
employee  in  such  wise  as  to  deprive  the  employer  of  his  ser- 
vices.^ The  employer's  right  to  recover  does  not  interfere  with 
the  employee's  right  to  sue  the  same  party  for  damages  for  such 
personal  injuries  as  he  may  have  received.^  This  doctrine,  hke 
that  which  allows  a  suit  by  an  employer  for  the  seduction  of 
a  female  employee  ^  or  for  libel  injuring  the  employee's  character/ 
is  grounded  on  the  view  that  the  employer  has  an  interest  or 
property  in  the  services  of  one  in  his  employment;  so  that 
where  he  is  deprived  of  them,  or  their  value  is  diminished,  the 
employer  is  entitled  to  redress,  actual  loss  being  necessarily 
proved  to  support  an  action.* 

A  statute  that  may  be  noticed  under  this  general  head  is  one 
that  gives  employers  a  right  of  action  against  persons  selling 
liquor  to  employees,  producing  intoxication  and  consequent 
damage  to  the  employer.^  Such  laws  may  or  may  not  require 
previous  notice  not  to  sell ;  they  are  to  be  strictly  construed, 

1  Woodward  v.  Washburn,  3  Den.  369  (N.Y.) ;  McCarthy  v.  Guild,  12  Mete. 
291  (Mass.). 

«  Rogers  v.  Smith,  17  Ind.  323. 

» Furman  v.  Applegate,  23  N.J.L.  28;  Nickelson  v.  Stryker,  10  Johns.  115 
(N.Y.) ;  Hewitt  v.  Prime,  21  Wend.  79  (N.Y.). 

*  Riding  v.  Smith,  13  Albany  L.  J.  441. 

«  Fluker  v.  R.  Co.,  81  Ga.  461,  8  S.E.  529. 

e  Wash.,  A.C.  sec.  2945 ;  Mass.,  R.L.  ch.  100,  sec.  63. 


THE   CONTRACT  OF  EMPLOYMENT  43 

and  where  they  give  a  right  of  action  for  damages  only,  no  other 
proceedings  can  be  had  under  the  statute,  as  by  way  of  injunc- 
tion to  abate  a  nuisance,  since  the  employer  has  no  such  prop- 
erty in  his  workmen  as  to  entitle  him  to  a  writ  against  one 
keeping  open  a  place  to  which  they  voluntarily  resort.^ 

Section  18.  Civil  Rights  of  Employees.  —  A  majority  of  the 
states  of  the  Union  have  enacted  laws  whose  object  it  is  to  pro- 
tect workmen  in  their  contracts  of  employment  while  exercising 
their  rights  as  citizens.  Such  laws  may  be  broad  enough  in 
their  terms  to  prohibit  employers  from  interfering  with  their 
employees  in  the  exercise  of  "any  natural  right  or  any  right  or 
privilege  of  citizenship ;"  ^  or  they  may,  as  is  most  frequently 
the  case,  direct  their  prohibitions  against  interferences  with  the 
exercise  of  the  right  to  vote,  either  by  demanding  an  inspection 
of  the  employee's  ballot,^  or  by  printing  on  the  pay  envelopes 
in  use  the  names  of  candidates,  or  mottoes,  arguments,  or 
threats  intended  to  influence  the  political  action  of  employees, 
or  the  posting  of  any  handbill  or  notice  stating  that,  in  case  of 
the  success  of  any  particular  candidate  or  party,  the  establish- 
ment will  close.*  Threats  of  dismissal  or  reduction  of  wages  on 
account  of  an  employee's  vote,^  or  interfering  with  his  candi- 
dacy for  office,®  or  otherwise  attempting  to  influence  his  action 
may  also  be  made  an  offense.  One  state  prohibits  the  appoint- 
ment of  an  employer,  manager,  or  foreman  of  railroad,  mining, 

»  Northern  P.  R.  Co.  v.  Whalen,  149  U.S.  157,  13  Sup.  Ct.  822. 

«  Minn..  R.L.  sec.  5173. 

» Ala.,  Code,  sees.  6804,  6805. 

*  Cal.,  Penal  Code,  sec.  59 ;  N.Y.,  C.L.  ch.  40,  sec.  772 ;  S.D.,  Pen.  Code, 
sec.  62. 

•Conn.,  G.S.  sec.  1700;  Idaho,  Pen.  Code,  sec.  4585;  Ind.,  A.S.  sec.  2341 ; 
Ky.  Stat.  sec.  1574A. 

•  Wye,  R.S.  sec.  2523."' 


44  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

or  manufacturing  work  carried  on  in  the  precinct,  as  judge, 
clerk,  or  watcher  at  the  polls  in  any  election.^  Many  of  these 
laws  provide  that  time  to  vote  shall  be  allowed  employees, 
either  a  fixed  number  of  hours  or  a  half  day ;  or  the  day  of 
election  may  be  declared  a  legal  holiday. 

Employers  are  forbidden  by  the  laws  of  a  few  states  to  dis- 
charge employees  on  account  of  their  membership  in  the  Na- 
tional Guard,  or  to  refuse  them  permission  to  drill  or  perform 
active  service  when  ordered  out.^  Interference  with  such  mem- 
bers in  their  employment,  or  with  their  employers  in  their  busi- 
ness may  likewise  be  forbidden ;  also  discrimination  against 
such  workmen  by  labor  organizations  on  account  of  their 
membership.' 

«  Colo..  A.S.  Supp.,  sees.  1625wl/8,  1625wl/4. 

»  Kans.,  G.S.,  sec.  4058 ;  Wash.,  Acts  1909,  ch.  134,  sec.  69. 

»  Cal.,  Pen.  Code,  sec.  421 ;  111.,  Acts  1909,  p.  437 ;  Me.,  Acts  1909,  ch.  206, 
860.  116;  Mich.,  Acts  1909,  No.  194;  N.Y.,  C.L.  Ch.  40,  sees.  1480,  1481; 
Wash.,  Acts  1909,  ch.  134,  sees.  67,  68. 


CHAPTER  II 

WAGES 

Section  19.  Definition.  —  Wages  are,  in  both  common  and 
legal  language,  the  compensation  paid  or  to  be  paid  for  services, 
whether  computed  by  the  day,  week,  or  month,  or  by  the  piece 
or  job.  Payment  for  piece  or  job  work  is  frequently  spoken  of 
as  earnings,  but  it  differs  in  no  sense  from  payment  computed  by 
time,  the  words  "earnings"  and  "wages"  being  often  used  together 
in  statutes  on  the  subject.  In  mining  and  elsewhere,  much  of 
the  work  is  done  by  what  is  called  contracting,  one  man  being 
paid  by  the  ton  or  other  quantity,  he  paying  a  helper  or  helpers 
a  fixed  sum  daily  or  at  a  given  rate  per  unit  used ;  but  the  sums 
received  by  the  different  workmen  are  alike  wages ;  ^  so  also 
where  a  group  of  men  are  employed  in  the  joint  production  of 
a  designated  unit,  and  the  payment  therefor  is  divided  among 
them  fractionally  or  by  a  percentage.  The  profits  of  con- 
tractors where  agreements  are  made  for  the  performance  of 
work  involving  individual  direction  and  the  employment  and 
guidance  of  subordinates,  as  in  the  erection  of  a  building  or  the 
construction  of  public  works,  are  not  classed  as  wages.^  The 
word  "salary"  is  also  said  by  some  courts  to  be  synonymous  with 
wages,'  though  in  others  it  is  held  to  mean  a  larger  compensa- 

'  Coal  Co.  V.  Costello,  33  Pa.  (9  Casey)  241. 

«  Heard  c.  Crum,  73  Miss.  157, 18  So.  934  ;  Lang  v.  Simmons,  64  Wis.  625.  25 
N.W.  650.  '  Bovard  ».  Ford,  83  Mo.  App.  498 ;  Com.  r.  Butler,  99  Pa.  635. 

45 


46  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

tion  for  more  important  services/  or  payment  for  services  other 
than  of  a  manual  or  mechanical  kind.^  Salaries  of  public 
officers  are  not  exempt  from  garnishment  under  laws  exempt- 
ing wages.^ 

No  wages  can  be  recovered  for  services  rendered  in  violation 
of  the  provisions  of  the  law.  Thus  an  engineer  working  without 
a  license  when  the  law  requires  one  can  recover  nothing  in  a  suit 
for  wages  ;^  nor  can  one  who  works  on  Sunday  where  the  law 
prohibits  such  labor ;  ^  or  who  works  more  than  eight  hours  in 
violation  of  statute.^ 

The  payee  must  in  general  be  either  the  person  rendering  the 
service  or  his  legal  representative,  though  a  few  states  have 
laws  for  the  payment  of  wages  to  the  widow,  minor  children, 
or  other  heirs  of  a  deceased  employee  without  the  formality 
of  administration,  but  only  in  case  the  debt  does  not  exceed  the 
sum  fixed  by  the  statute,  this  amount  varying  in  different  states 
from  seventy-five  to  two  hundred  doUarsJ  Provisions  as  to 
the  rights  of  assignees,  and  other  creditors,  and  of  married 
women  and  minors  are  found  in  the  statutes  of  nearly  every 
state,  and  will  be  noted  under  their  various  headings.  Where 
wages  are  paid  in  violation  of  the  provisions  of  law  appUcable 
in  the  case,  the  employer  cannot  plead  such  unlawful  payment 

1  Meyers  v.  City  of  New  York.  69  Hun  291,  23  N.  Y.  Supp.  674. 

« In  re  Stryker,  158  N.Y.  526.  53  N.E.  525. 

'McLellan  v.  Young,  54  Ga.  399,21  Am.  Rep.  276;  Thomas  r.  Walnut 
Land.  etc..  Co.  43  Mo.  App.  653. 

*  The  Pioneer.  Deady  72.  Fed.  Cas.  No.  11.177. 

»  McGrath  v.  Merwin.  112  Mass.  467,  17  Am.  Rep.  119;  Carson  v.  Calhoun, 
101  Me.  456,  64  Atl.  838. 

« Short  V.  Min.  Co.,  20  Utah  20,  57  Pac.  720.  (Suit  was  for  pay  for  overtime, 
work  only.) 

'  Ala.,  Code,  sec.  4201 ;  Ga.,  Acts  1901,  p.  60;  Miss.,  Code,  sec.  2133 ;  Pa., 
Acts  1907,  No.  162. 


WAGES  47 

as  a  defense  in  an  action  to  recover  wages  earned.  Thus  in 
the  case  of  a  law  prohibiting  the  payment  of  seamen's  wages 
in  advance,*  payments  made  in  violation  thereof  were  not 
allowed  as  a  set-off  in  an  action  to  recover  the  whole  amount  of 
wages  earned  under  the  contract.^ 

Section  20.  Rate.  —  The  rate  of  wages  is  usually  fixed  by 
agreement,  but  where  no  agreement  is  made,  the  law  implies 
a  promise  to  pay  as  much  as  the  services  are  reasonably  worth, 
or  a  quantum  meruit.^  Where  a  rate  is  agreed  upon,  no  action 
on  a  quantum  meruit  can  be  brought,*  and  if  it  can  be  shown  in 
an  action  of  this  sort  that  a  rate  was  actually  agreed  upon,  that 
rate  will  control  the  decision  of  the  court.^  On  the  other  hand, 
a  suit  on  contract  cannot  secure  a  recovery  on  a  quantum  meruit.* 
If  the  price  is  agreed  upon  after  entrance  on  service,  the  agreed 
rate  relates  back  to  the  beginning  of  such  service.'  Changing 
the  rate  of  wages  is  in  effect  making  a  new  contract,  so  that  the 
courts  will  sanction  neither  a  settlement  by  proffer  of  a  lower 
rate  than  the  one  agreed  upon,^  nor  a  demand  for  a  higher  rate 
on  the  ground  that  the  work  was  worth  more,^  unless  mutual 
consent  is  properly  shown.  Thus,  though  competence  is  assumed 
and  an  employer  may  rightfully  discharge  an  employee  for  in- 

1  U.S..  30  Stat.  763. 

*  The  Alexander  M.  Lawrence,  101  Fed.  135. 

»  Henderson  Bridge  Co.  v.  McGrath.  134  U.S.  260,  10  Sup.  Ct.  730  ;  Dubois  v. 
Del.  &  H.  Canal  Co.,  4  Wend.  292  (N.Y.). 
«  Clark  V.  Smith,  14  Johns.  326  (N.Y.). 
'  Rubin  ».  Cohen.  113  N.Y.  Supp.  843. 

•  Birlant  v.  Cleckley,  48  S.C.  298,  26  S.E.  600. 
'  Royal  r.  Grant,  5  Ga.  App.  643,  63  S.E.  708. 

•Hackman  v.  Flory,  16  Pa.  St.  196;  Pennington  r.  Lumber  Co.,  122  S.W. 
923  (Tex.  Civ.  App). 

» Snyder  r.  Wright,  4  E.  D.  Smith  367  (N.Y.) ;  Wallace  c.  Floyd,  29  Pa.  St. 
184. 


48  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

competence,  he  cannot  refuse  to  pay  wages  at  the  agreed  rate 
on  the  plea  that  the  employee  was  unskillful,  as  his  retention 
in  service  will  be  construed  as  a  waiver  of  the  employer's  right 
to  discharge.^  Prior  notice  of  reduction  of  wages  may  be  re- 
quired by  statute,^  though  in  view  of  the  rule  of  law  that  an 
agreed  rate  controls  until  a  change  is  assented  to  by  both  par- 
ties, the  importance  of  such  a  law  does  not  seem  to  be  great. 

Rates  of  wages  have  been  fixed  by  statute  in  a  few  states 
though  only  in  the  matter  of  employment  on  public  works,^ 
or  in  the  printing  offices  of  the  state  or  the  United  States.* 
Besides  these,  a  Virginia  statute  declares  that  a  reasonable  sum 
shall  be  paid  for  services  in  salvage,  and  in  case  of  the  failure 
of  the  parties  interested  to  agree,  they  shall  each  choose  an 
arbitrator,  and  a  state  official  shall  choose  a  third,  this  board  to 
determine  the  rate.^ 

The  state  of  Massachusetts  is  the  first  to  look  seriously  toward 
the  regulation  of  wages  in  private  undertakings,  having  provided 
for  a  commission  to  study  the  matter  of  the  wages  of  women 
and  minors,  with  a  view  to  fixing  minimum  rates  of  wages  for 
such  classes  of  employees.^  Since  laws  regulating  the  hours  of 
labor  of  such  persons  are  valid,  there  appears  to  be  at  least  an 
open  field  for  an  attempt  to  regulate  their  wages  also,  though 
the  chief  reason  for  limiting  the  hours  of  labor  of  females,  i.e., 

»  Clark  V.  Fensky,  3  Kans.  389. 

»  Mo.,  R.  S.  sec.  1009  ;  Texas,  R.  S.,  sec.  4544 ;  U.S.,  30  Stat.  424,  sec.  9,  C.S., 
p.  3205  (applies  only  to  receivers  of  railroads  appointed  by  Federal  courts). 

3  Cal.,  Sims'  Gen.  Laws,  No.  2894 ;  Del.,  Acts  1903,  ch.  410  (City  of  Wilming- 
ton only) ;  Nebr.,  Acts  1903,  ch.  17  (cities  of  first  class) ;  Nev.,  Acts  1907, 
ch.  202 ;  N.Y.,  Con.  L.,  ch.  31,  sec.  3. 

*  Cal.,  Sims'  Pol.  Code,  sec.  531 ;  Kans.,  Acts  1907,  ch.  393  ;  U.S.,  28  Stat. 
607,  31  Stat.  643. 

»  Code,  sec.  1946.  *  Resolve  approved  May  11,  1911. 


WAGES  49 

on  account  of  physiological  differences  between  males  and  fe- 
males, cannot  be  cited  as  supporting  a  wage  law. 

Laws  regulating  wages  on  public  works  may  fix  an  absolute 
minimum  rate,  or  they  may  provide  that  current  or  prevailing 
rates  shall  be  paid.  A  law  of  Indiana^  fixing  a  minimum  rate 
was  held  to  be  unconstitutional,  since  it  interfered  with  the  free- 
dom of  counties,  cities,  and  towns,  which  were  held  to  be  cor- 
porations with  a  right  to  contract  in  matters  affecting  their 
own  interests;  and  also  burdened  the  citizen  by  taking  his 
property  without  due  process  of  law.^  A  similar  law  of  New 
York  3  was  upheld  in  the  case  of  a  direct  employee  of  the 
state  under  a  superintendent  of  one  of  its  undertakings,  the 
court  finding  no  express  or  implied  restriction  in  the  constitu- 
tion of  the  state  upon  the  power  of  the  legislature  to  fix  and 
declare  the  compensation  to  be  paid  for  labor  or  services  per- 
formed upon  the  public  works  of  the  state,  declaring  further 
that  wages  so  fixed  cannot  be  reduced  by  the  officer  under 
whom  any  employee  might  work.*  A  subsequent  law  of  this 
state  directing  contractors  as  well  as  public  officers  to  pay 
current  local  rates  of  wages  ^  was  declared  unconstitutional  as 
exceeding  the  power  of  the  legislature  in  the  matter  of  both 
public  and  private  contracts,  the  interference  with  the  rights 
of  both  the  city  and  the  contractor  being  condemned.*  Later 
this  decision  was  modified  to  the  extent  of  holding  the  law  ap- 
plicable to  contracts  in  which  the  city  was  directly  interested, 
making  the  law  invalid  in  its  application  to  contractors  only.'' 

'  Acts  1901,  p.  282. 

«  street  v.  Varney  Elec.  Supply  Co..  160  Ind.  338.  66  N.E.  895. 
»  Acta  1889.  ch.  380.  *  Clark  v.  State.  142  N.Y.  101.  36  N.E.  817. 

'  Acts  1897.  ch.  415.  •  People  v.  Coler.  166  N.Y.  1,  59  N.E.  716. 

'  Ryan  v.  City  of  New  York,  177  N.Y.  271,  69  N.E.  599. 
B 


50  LAW  OF  THE  EMPLOYMENT  OP  LABOR 

Following  these  decisions  came  the  adoption  of  an  amend- 
ment of  the  constitution  of  the  state,  empowering  the  legislature 
to  regulate  the  conditions  of  employment  on  the  public  works 
of  the  state,  whether  directed  by  the  state  or  a  subdivision 
thereof,  or  by  a  contractor.  The  law  previously  declared  un- 
constitutional was  thereupon  reenacted,'  and  has  been  sus- 
tained by  the  court  of  last  resort  of  the  state.*  The  view  of 
the  Supreme  Court  of  the  United  States,  laid  down  in  a  case 
where  the  question  turned,  not  on  rates  of  wages,  but  on  the 
hours  of  labor,  holding  that  municipalities  are  but  the  agents, 
of  the  state  for  the  conduct  of  local  affairs,  and  are  properly 
subject  to  such  regulations  as  the  state  may  see  fit  to  prescribe, 
would  sustain  such  laws  as  the  above  generally.^ 

Section  21.  Deductions  from  Wages.  —  The  discounting  of 
time  checks  by  the  employer  issuing  them,  or  by  his  agent,  may 
be  prohibited  by  statute,*  or  the  amount  that  may  be  deducted 
for  payments  made  in  advance  of  the  regular  payday  limited.^ 
The  willful  refusal  to  pay  a  wage  debt  with  the  intent  of  obtain- 
ing a  discount  thereon  may  be  punished  as  a  misdemeanor,® 
or  as  a  crime.^ 

Deductions  by  way  of  fines  for  imperfect  work,^  or  "for  any 
reason,"  ^  may  be  prohibited  or  restricted.  But  a  law  that 
prohibits  the  imposition  of  a  fine  or  the  withholding  of  wages 
on  account  of  imperfections,  unlawfully  interferes  with  the  right 
to  make  reasonable  contracts ;  ^^  though  if  it  allows  for  fines  only 

«  Const,  art.  12,  sec.  1,  Am.  1905  ;  Acts  1906,  ch.  506. 

*  People  ex  rel.  Williams  Eng.  &  Cont.  Co.  v.  Metz.,  193  N.Y.  148.  85  N.E. 
1070.  3  Atkin  v.  Kansas,  191  U.S.  207,  24  Sup.  Ct.  124. 

*  Nev.,  Acts  1905,  ch.  106.  '  Ark..  Dig.  sec.  5383. 

*  Mont.,  Acts  1907,  ch.  144.  '  Minn.,  R.L.,  sec.  5096. 
«  Mass.,  Acts  1909,  ch.  514,  sec.  114.                              '  Ind.,  A.S.  sec.  7059b. 
10  Commonwealth  v.  Perry,  155  Mass.  117.  28  N.E.  1126. 


WAGES  51 

in  accordance  with  the  terms  of  a  prior  agreement  or  contract, 
it  is  valid. ^  Within  the  purpose  of  this  class  of  laws  are  those 
that  prohibit  the  screening  of  coal  before  it  is  weighed,^  the  loss 
of  coal  through  the  screen  being  regarded  as  causing  an  unjust 
loss  to  the  miner  whose  contract  calls  for  payment  by  the  weight 
of  the  coal  mined.  Such  laws  have  been  held  to  be  constitutional, 
as  within  the  police  power  of  the  state,^  though  the  contrary  view 
has  also  been  expressed,  the  laws  being  condenmed  as  interfering 
unduly  with  the  right  to  contract  freely.* 

The  compulsory  remission  of  any  part  of  an  employee's  wages 
for  the  maintenance  of  hospitals,  libraries,  or  for  other  benefits 
or  social  purposes  is  prohibited  in  some  states.^  Though  it  is 
unlawful  for  an  employer  thus  to  withhold  his  employee's  wages, 
he  is  not  by  that  fact  relieved  from  his  obligation  to  supply 
hospital  treatment,  according  to  his  contract,  to  an  injured 
employee  whose  wages  have  been  thus  retained.^ 

Section  22.  Time  of  Payment.  —  The  time  of  payment  of 
wages  is  usually  fixed  by  the  contract  of  employment,  or  by 
custom,  which  is  in  effect  the  same  thing.  An  agreement  to  do 
a  piece  of  work,  or  to  work  for  a  stated  period,  for  a  certain  sum, 
no  time  of  payment  being  set,  is  construed  to  be  a  contract  to 
pay  only  when  the  labor  is  completed  or  the  contract  is  other- 
wise terminated.^     If  monthly  payments  are  agreed  to,  wages 

»  Gallagher  v.  Mfg.  Co.,  172  Mass.  230,  51  N.E.  1086. 

«  Ark.,  Acts  1905,  No.  219  ;  Colo.,  A.S.,  sec.  3204k  ;  Iowa,  Code,  sec.  2490,  etc. 

»  McLean  v.  State,  211  U.S.  535,  29  Sup.  Ct.  206  ;  State  r.  Peel  Splint  Coal  Co., 
36  W.  Va.  802,  15  S.E.  1000. 

<  Ramsey  r.  People,  142  III.  380,  32  N.E.  364  ;  In  re  House  BUI  No.  203,  21 
Colo.  27,  39  Pac.  431. 

'  Ind.,  A.S.  sec.  2300;  Md.,  P.G.L.  art.  23.  sec.  297;  Mich..  C.L.  sec. 
11400,  11401.  •  Wabash  R.  Co.  v.  KcUey,  153  Ind.  119,  52  N.E.  152. 

'  Thompson  v.  Phelan,  22  N.H.  339 ;  Thorp  v.  White,  13  Johns.  53  (N.Y.). 


52  LAW  OF  THE   EMPLOYMENT  OP  LABOR 

are  due  for  full  months  as  they  are  earned.  For  fractions  of 
a  month  no  recovery  of  wages  can  be  had  unless  there  was  a 
wrongful  discharge,  when  the  employee  may  sue,  not  for  wages 
earned,  but  for  damages  caused  by  the  discharge.^  (See  sections 
8,  11.) 

Numerous  statutes  have  been  enacted  regulating  the  time  o\ 
payment  of  wages,  some  legislatures  prescribing  a  monthly  pay- 
day,2  others  semi-monthly,^  bi-weekly,^  or  even  weekly  ^  pay- 
days. These  laws  may  apply  to  all  employers  of  labor,  cor- 
porate or  individual,^  to  corporations  only,'  or  to  designated 
classes  of  employers,  as  operators  of  mines,^  mines  and  fac- 
tories,^ or  to  employers  having  in  their  service  more  than  a 
designated  number  of  laborers.^" 

Courts  have  upheld  the  constitutionality  of  a  law  that  applied 
only  to  designated  classes  of  employers,"  or  to  corporations 
only,^^  as  well  as  a  law  of  general  application."  In  the  New 
York  case  cited,  though  the  law  uses  the  words,  "each  and 
every  employee,"  it  was  construed  to  apply  only  to  manual 
laborers. 

1  Walsh  V.  New  York  &  Ky.  Co.,  85  N.Y.  Supp.  83. 

*  Ariz.,  Pen.  Code,  sec.  615 ;  Va.,  Code,  sec.  3657d. 

*  Colo.,  Supp.,  sec.  2801ol  (except  railroads  which  must  pay  monthly) ;  Iowa, 
Code,  sec.  2490 ;  Ky.,  Stat.,  sec.  2739A ;  Pa.,  B.P.Dig.  p.  2077. 

« Ind.,  A.S.  sec.  7065  ;   Me.,  R.S.  ch.  40,  sec.  57  ;  N.J.,  Acts  1899,  ch.  38. 
'  Conn.,  G.S.  sec.  4695;  Kans.,  G.S.  sec.  1295  (other  than  railroad  and  farm- 
ing corporations) ;   Mass.,  Acts  1909,  ch.  514,  sec.  112. 

*  Ariz.,  Mass.  (practically  all  but  farm  labor),  N.J.  (same  as  Mass.). 

'  Colo.,  Conn.,  Kans.,  R.I.  *  Iowa,  Ky.,  Wyo. 

'  Ind.,  Pa.  (by  construction),  Va.  >"  Me.,  Ky. 

"  Hancock  v.  Yaden,  121  Ind.  366,  23  N.E.  253  ;  Lawrence  v.  Rutland  R.  Co., 
80  Vt.  370,  67  Atl.  1091. 

«  State  V.  Browne  &  Sharpe  Mfg.  Co.,  18  R.I.  16,  25  Atl.  246 ;  People  v.  City 
of  Buffalo,  57  Hun  577,  11  N.  Y.  Supp.  314. 

"  Com.  V.  Dunn,  170  Mass.  140,  49  N.E.  110. 


WAGES  53 

On  the  other  hand,  a  law  requiring  a  monthly  payday  was 
held  to  restrict  the  constitutional  right  of  employers  and  em- 
ployees to  contract  freely  as  to  the  terms  and  times  of  pay- 
ment ;  ^  though  it  was  said  in  a  very  recent  case,  in  which  the 
constitutionality  of  a  law  requiring  railroads  to  pay  their  em- 
ployees semi-monthly  was  under  consideration,  that  the  state 
had  an  interest  in  the  welfare  of  its  citizens  which  would  be 
served  by  the  frequent  payment  of  wages  so  that  workmen 
receiving  small  wages  might  be  better  able  to  make  cash  pur- 
chases of  the  necessaries  of  life ;  and  that  the  workman  and  a 
corporate  employer  do  not  stand,  in  the  matter  of  making  con- 
tracts, on  an  equal  footing,  so  that  the  state  might  properly  act 
in  the  manner  indicated  so  as  to  in  part  remove  the  existing 
inequality.'^  In  another  state  a  law  requiring  weekly  pay- 
ments of  the  full  amount  of  wages  due  was  held  not  to  be  a 
valid  exercise  of  the  police  power,^  and  obviously  a  law  of  like 
tenor,  but  applying  only  to  companies,  corporations,  and  as- 
sociations, and  not  to  individual  employers,  and  also  discrimi- 
nating between  manual  laborers  and  other  employees,  would  be 
found  unconstitutional  by  a  court  holding  such  views  of  the 
limits  of  the  police  power.* 

Falling  within  the  purpose  of  the  laws  of  this  class  to  procure 
prompt  payment  of  wage  debts  are  laws  directing  that  the  wages 
earned  by  discharged  employees  shall  be  paid  them  at  the  time 
of  discharge  without  reference  to  the  date  of  the  customary  pay- 

>  Johnson  v.  Goodyear  Min.  Co.,  127  Cal.  4,  59  Pac.  304. 

»  New  York  Central,  etc.,  R.  Co.  v.  Williams,  118  N.  Y.  Supp.  785,  64  Misc. 
Rep.  15  ;  affirmed,  199  N.Y.  108,  92  N.E.  404. 

»  Republic  Iron  &  Steel  Co.  v.  State,  160  Ind.  379,  66  N.E.  1005;  Braceville 
Coal  Co.  V.  People,  147  111.  66,  35  N.E.  62. 

*  Toledo,  etc.,  R.  Co.  v.  Long,  169  Ind.  316,  82  N.E.  757. 


54  LAW  OP  THE  EMPLOYMENT  OP  LABOR 

day.^  Some  of  these  laws  make  the  same  provision  for  em- 
ployees voluntarily  leaving  service  as  for  those  discharged. 
The  act  of  the  Oregon  legislature  to  this  effect  requires  three 
days'  notice  of  intention  to  leave,  and  excepts  strikers  from  the 
class  of  employees  benefited,  unless  the  regular  payday  falls 
more  than  thirty  days  after  the  occurrence  of  the  strike.  Laws 
of  this  class  are  constitutional,^  at  least  in  their  application  to 
corporations,  though  they  may  be  regarded  as  infringing  on  the 
constitutional  rights  of  persons.'  They  do  not  interfere  with 
the  employer's  right  to  claim  offsets  for  damages  caused  by  the 
employee's  failure  to  fulfill  his  contract.*  A  penalty  of  an  added 
percentage,  or  of  the  continuance  of  wages  for  a  limited  time, 
where  the  employer  fails  to  comply  with  the  statute,  may  be 
provided  for ;  ^  a  penalty  may  also  be  allowed  for  the  deten- 
tion of  wages,  without  regard  to  the  termination  of  employ- 
ment ;  ®  this  provision  has  been  declared  valid,^  though  the 
contrary  has  been  held  on  the  ground  that  the  law  does  not 
protect  equally  the  interests  of  the  employer  and  the  employee.^ 
In  order  to  recover  such  penalties  the  employee  must  comply 
strictly  with  any  prescribed  formalities,  as  nothing  will  be 
taken  by  way  of  intendment  in  the  enforcement  of  penalizing 
provisions.^     In  this  connection  may  be  mentioned  laws  that 

lAriz.,  Pen.  Code,  sec.  616;    Ark.,  Acts   1905,   No.  210;    Colo.,   A.S.  sec. 
2801ql ;  Oreg.,  Acts  1907.  ch.  163  :  S.  C.  Civ.  Code,  sec.  2718. 

«  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Paul,  173  U.S.  404,  15  Sup.  Ct.  1042. 

»  Leep  V.  St.  Louis,  etc.,  R.  Co.,  58  Ark.  407,  25  S.W.  75. 

*  Leep  V.  St.  Louis,  etc.,  R.  Co.,  supra. 

»  Ark.,  Acts  1905,  No.  210  ;  Colo.,  A.S.  sec.  2801ql. 

« Ind.,  A.S.  sec.  7068. 

'  Seeleyville  Coal  Co.  v.  McGlosson,  166  lad.  561,  77  N.E.  1044. 

»  San  Antonio  &  A.  P.  R.  Co.  v.  Wilson,  4  Texas  App.  565,  19  S.W.  910. 

»  St.  Louis,  L  M.  &  S.  R.  Co.  r.  McClerkin,  88  Ark.  277,  114  S.W.  240. 


WAGES  55 

require  the  payment  of  interest  on  any  portion  of  the  wages 
retained  as  a  pledge  of  continued  and  satisfactory  service,' 
and  laws  prohibiting  entirely  such  retention.^ 

Section  23.  Place  of  Payment.  —  One  state  has  a  law  regu- 
lating the  place  of  the  payment  of  wages,  payment  in  bar- 
rooms or  other  places  where  liquor  is  sold  being  prohibited ; ' 
while  another  allows  a  discharged  employee  of  a  railroad  com- 
pany to  designate  any  station  where  a  regular  agent  is  kept  as 
the  place  of  payment  of  the  wages  due  him  at  the  time ;  *  but 
this  matter  is  generally  left  to  the  determination  of  the  parties 
to  the  contract. 

Section  24.  Attachments,  Garnishments,  etc.  —  Demands  by 
an  employee's  creditors  cannot  be  met  by  the  employer's  pay- 
ment to  them  of  wages  earned,  unless  the  employee  has  made 
an  assignment  of  his  wages  in  this  particular  behalf,  unwarranted 
payments  by  the  employer  leaving  him  liable  to  the  employee 
himself  for  a  second  payment  of  the  wages.^  Garnishment  or 
other  legal  proceedings  must  be  resorted  to  in  order  to  sequester 
a  debtor  employee's  earnings  against  his  will ;  and  in  every  state 
of  the  Union  but  North  Carolina  statutory  restrictions  exist  as 
to  the  amounts  that  can  be  so  taken,  and  this  state  has  a  general 
exemption  provision  in  its  constitution  ;  in  many  states  the 
restriction  applies  only  where  the  employee  has  dependents. 
These  statutes  may  declare  a  certain  percentage  of  the  debtor's 
wages  exempt,  or  they  may  provide  that  wages  for  a  certain 

«  La..  Acts  1908,  No.  31. 

« III..  R.S.  ch.  48,  sec.  16  ;  Conn.,  G.S.  hoc.  4696. 

» Cal.,  Pen.  Code,  sec.  680.  *  Ark..  Acts  1905.  ch.  210. 

'  Southern  R.  Co.  v.  Fulford,  128  Ga.  103,  54  S.E.  68 ;  Torre  Haute  A  I.  R. 
Co.  V.  Baker,  122  Ind.  433,  24  N.E.  83  ;  Crisp  r.  R.  Co..  98  Mich.  651,  57  N.W. 
1050 ;  Burns  v.  Marlaud  Mfg.  Co.,  80  Mass.  487. 


56  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

period  or  of  a  certain  amount  cannot  be  taken  for  debt.  The 
statute  may  exempt  all  wages  in  the  hands  of  the  employer  from 
attachment  except  for  board  and  lodging  for  a  specified  term,^ 
or  all  current  wages.^ 

Wages  improperly  in  the  hands  of  a  magistrate  through 
garnishment  may  be  recovered  by  a  rule  against  him.'  An 
employer  cannot  allow  wages  to  accumulate  in  his  hands  un- 
til the  total  exceeds  the  exempted  amount  and  thus  defeat 
the  provisions  of  the  law,*  nor  can  an  employee  make  a  valid 
contract  waiving  his  exemption  rights.^  The  law  exempting 
wages  is  held  to  protect  from  attachment  also  any  property 
purchased  by  the  use  of  the  exempted  wages.®  Courts  differ 
on  the  question  as  to  whether  or  not  the  protection  af- 
forded by  exemption  laws  extends  to  non-residents.^  The 
matter  may  be  determined  by  statute,  as,  for  instance,  a  dec- 
laration that  the  law  of  the  state  of  residence  shall  control.* 
Assigning  claims  to  non-residents  or  otherwise  taking  or  send- 
ing them  out  of  the  state  for  collection  in  order  to  avoid  local 
exemption  laws  is  prohibited  by  the  statutes  of  a  number  of 
states,  and  a  law  of  this  sort  was  held  to  support  a  request 
for  an  injunction  against  a  creditor  prosecuting  his  suit  out- 
side the  state  against  a  garnishee  for  the  recovery  of  a  debt 
that  was  exempt  under  the  law  of  the  state  of  residence  of  both 

1  Pa.,  B.  P.  Dig.  p.  2077,  sees.  25,  26 ;  Acts  1905.  No.  99. 

2  Texas,  R.S.  sees.  2395,  2397.  '  Curran  v.  Fleming,  76  Ga.  98. 

*  Chapman  v.  Berry,  73  Miss.  437,  18  So.  918. 

»  Richardson  v.  Kaufman,  143  Ala.  243,  39  So.  368 ;  Green  v.  Watson,  75  Ga. 
471. 

«  Auitman  &  Taylor  Co.  v.  Smith.  119  S.W.  1178  (Ky.). 

'  Cf.  Wright  V.  R.  Co.,  19  Nebr.  175,  27  N.W.  90,  and  Lyon  v.  CaUopy,  87 
Iowa  567.  54  N.W.  476. 

*  S.  Dak.,  Justices'  Code,  sec.  41. 


WAGES  67 

debtor  and  creditor.^  The  debtor  was  also  held  to  be  entitled 
to  a  judgment  in  damages  against  the  creditor  for  the  amount  of 
wages  collected  by  him  in  violation  of  the  law.  In  another  case 
such  a  law  was  held  to  be  unconstitutional  on  the  ground  that 
it  discriminated  between  wage  earners  and  other  debtors,  and 
between  creditors  residing  within  the  state  and  those  residing 
outside,  placing  the  former  at  a  disadvantage ;  also  as  extend- 
ing the  exemption  laws  of  a  state  beyond  its  boundaries.^  The 
weight  of  opinion  seems  to  be,  however,  that  such  laws  are  con- 
stitutional,' and  that  where  the  law  prohibits  sending  claims  out 
of  the  state,  taking  them  is  a  violation  of  the  law.*  The  gar- 
nishee's action  may  be  in  good  faith  in  making  payments  that 
could  have  been  defended  if  there  had  been  a  full  knowledge  of 
the  circumstances,  in  which  case  the  debt  will  be  regarded  as 
discharged  in  so  far  as  he  is  concerned,  the  liability  falling  upon 
the  wrongful  garnishor ;  ^  but  where  payment  is  not  made,  it 
may  still  be  held  that  the  foreign  judgment  is  within  the  juris- 
diction of  the  court  rendering  it,  but  the  payment  thereon  will 
be  subject  to  the  exemption  laws  of  the  state  of  residence  of  the 
debtor.' 

Section  25.  Assignments  of  Wages.  —  Assignments  of  un- 
earned wages  are  safeguarded  in  various  ways,  as  by  the  require- 
ment that  they  must  be  recorded,'  that  copies  must  be  filed  with 

>  Main  v.  Field.  13  Ind.  App.  401,  40  N.E.  1103 ;  Wilson  v.  Josephs,  107  Ind. 
490,  8  N.E.  616. 

» In  re  Flukes,  157  Mo.  125.  57  S.W.  545. 

'  Sweeny  v.  Hunter,  145  Pa.  St.  363,  22  Atl.  653  ;  Singer  Mfg.  Co.  r.  Fleming, 
39  Nebr.  679,  58  N.W.  226. 

*  Wilson  V.  Josephs,  supra. 

'  Main  v.  Field,  supra;  O'Connor  v.  Walter,  37  Nebr.  267,  55  N.W.  867. 

•  S.nger  Mfg.  Co.  v.  Fleming,  supra. 

1  Conn.,  Act3  1905,  ch.  78  ;  111.,  R.S.  eh.  10b,  sec.  18.  etc. 


58  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

the  employer,*  or  even  that  his  consent  must  be  obtained,^  or 
that  the  wife  must  join  in  the  husband's  assignments,  or  vice 
versa}  Assignments  to  secure  loans  ^  or  future  advances  *  may 
be  declared  void,  or  all  assignments  of  future  earnings  pro- 
hibited.® This  latter  prohibition  was  declared  constitutional 
in  a  case  in  which  it  was  said  that  the  law  was  enacted  for  the 
protection  of  a  class  of  persons  who  are  in  large  numbers  depend- 
ent on  daily  or  weekly  wages  for  the  maintenance  of  themselves 
and  families,  and  whose  circumstances  render  them  peculiarly 
liable  to  imposition  and  injustice.  The  law  was  approved  on 
this  ground,  and  as  aiming  clearly  at  the  "protection  of  wage 
earners  from  oppression,  extortion,  or  fraud  on  the  part  of 
others,  and  from  the  consequences  of  their  own  weakness,  folly, 
or  improvidence."  ' 

The  language  of  the  court  in  this  case  can  hardly  commend 
itself  to  general  acceptance,  for  while  laws  of  the  same  general 
class  are  sustained  by  the  highest  courts,  the  reasons  usually  of- 
fered do  not  convey  the  impression  of  restraint  on  the  acts  of  the 
employee  on  account  of  his  incapacities  of  the  sort  designated. 
Indeed,  the  court  of  one  state  declared  a  law  prohibiting  the 
payment  of  wages  in  scrip,  even  at  the  employee's  option,  was 
"an  encroachment  upon  his  constitutional  rights,  and  an  ob- 
struction to  his  pursuit  of  happiness.  Such  laws  as  the  one 
under  consideration  classify  him  among  the  incompetents,  and 
degrade  his  calling."  ^     The  constitutionality  of  the  law  of 

»  Mass.,  Acts  1906,  ch.  390 ;  N.Y.,  Acts  1904,  eh.  77. 

*  La.,  Acts  1906,  No.  5  ;  |Minn.,  Acts  1905,  ch.  309  ;  Mass.,  Acts  1908,  ch.  605. 
» Colo.,  Acts  1907,  ch.  240 ;    Iowa,  Acts  1906,  ch.  148 ;    Mass.,  Acts  1908, 
supra.  *  Ga.,  Acts  1904,  p.  84. 

»  Mass.,  Acts  1906,  ch.  390.  « Ind..  A.S.,  sec.  7059c. 

7  Int.  Textbook  Co.  v.  Weissinger,  160  Ind  349,  65  N.E.  521. 
«  State  V.  Haun,  61  Kans.  146,  59  Pac.  340. 


WAGES  69 

Massachusetts  requiring  the  recording  of  assignments  and 
their  prior  acceptance  by  the  employer,  as  well  as  the  joint 
action  of  the  wife,  was  upheld  by  the  supreme  court  of  that 
state  on  the  grounds  that  it  lessened  the  opportunity  for  dis- 
honesty on  the  part  of  both  wage  earners  and  money  lenders, 
as  well  as  tending  to  diminish  the  risk  of  litigation  consequent 
on  the  refusal  of  an  employer  to  pay  the  assigned  wages.  It 
also  admitted  the  validity  of  a  distinction  between  assignments 
to  secure  loans  of  money  and  assignments  as  security  for  ne- 
cessities. The  section  relating  to  the  wife's  joint  action  was 
held  to  be  of  less  certain  validity,  but  was  supported  as  within 
the  power  of  the  legislature,  which  "might  look  chiefly  to  the 
ordinary  relations  between  husband  and  wife  under  the  law, 
and  adopt  this  form  of  regulation  as  salutary  in  its  application 
to  most  members  of  the  class  with  which  they  were  dealing."  ' 
The  business  of  dealing  in  assigned  wages  may  be  regulated 
by  prohibiting  discounts  in  excess  of  the  legal  rate  of  interest ;  ^ 
or  dealers  may  be  required  to  procure  a  license,  the  rate  of  in- 
terest and  other  charges  be  limited,  all  calculations  required  to  be 
based  on  the  amount  actually  advanced  by  the  broker,  or  other 
restrictions  made.'  An  ordinance  embodying  a  number  of 
these  regulations  was  declared  constitutional  as  tending  to  pre- 
vent fraud  and  extortion  ;*  so  of  a  law  of  Connecticut  limiting 
the  rate  of  interest;^  while  in  Texas  a  statute  taxing  dealers  in 
assigned  wages  *  was  declared  unconstitutional  as  restraining 

»  Mutual  Loan  Co.  v.  MartcU.  200  Mass.  482,  86  N.E.  916. 
«  N.J..  G.S.,  p.  2344 ;   Md..  Acts  of  1906,  ch.  399. 

»  Colo.,  Acts  1909,  ch.  17 ;  Del.,  Acts  1909,  ch.  233 ;   Ind.,  Acta  1909,  ch.  34, 
etc.  *  Sanning  r.  City  of  Cincinnati.  81  Ohio  St.  142,  90  N.E.  125. 

»  State  V.  Hurlburt.  82  Conn.  232,  72  Atl.  1079. 
•  Acts  1905,  ch.  111. 


60  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

freedom  of  trade  and  denying  equality  before  the  law ;  ^  and  an 
Illinois  statute  applying  to  salaries  as  well  as  wages,  and  declar- 
ing the  forfeiture  of  the  principal  where  the  interest  is  usurious,* 
was  for  these  reasons  declared  void,^  restrictions  on  salaried 
employees  not  being  justified,  and  other  usurious  contracts  not 
being  dealt  with  in  so  drastic  a  manner. 

Section  26.  Suits  for  Wages.  —  Suits  for  wages  are  specially 
provided  for  in  a  number  of  states,  as  by  allowing  a  successful 
claimant  an  additional  recovery  for  attorneys'  fees ;  *  by  pro- 
hibiting a  stay  of  execution  where  the  judgment  is  for  the  re- 
covery of  a  wage  debt ;  ^  by  providing  that  no  property  shall  be 
exempt  from  execution  on  such  a  judgment;  ®  by  placing  suits 
for  wages  for  manual  labor  at  the  head  of  the  trial  docket ;  ^  by 
providing  that  two  or  more  wage  claimants  may  make  joint 
appeals ;  ^  or  by  prohibiting  the  allowance  of  setoffs  in  suits  for 
wages  except  for  money  actually  loaned  or  advanced,^  or  unless 
specifically  provided  for  in  writing.^" 

Courts  differ  as  to  the  constitutionaUty  of  laws  allowing  a 
successful  claimant  in  a  suit  for  wages  to  recover  also  an  attor- 
ney's fee,  some  holding  such  laws  constitutional,"  while  others 

I.Owens  V.  State,  53  Tex.  Cr.  App.  105,  112  S.W.  1075. 

»  Act  of  May  13,  1905.  =  Massie  v.  Cessna,  239  111.  352,  88  N.E.  152. 

*  Cal.,  Acts  1907,  ch.  51 ;  Idaho,  Code,  sec.  3721 ;  111.,  R.S.  ch.  13,  sec.  13 ; 
Ind.,  A.S.  sec.  7068. 

'  Iowa,  Code,  sec.  3996 ;  Mich.,  C.L.  sec.  901 ;  N.  Dak.,  Code,  sec.  8447 ; 
Ohio,  Gen.  Code,  sec.  10,403. 

•111.,  R.S.,  ch.  52,  sec.  16  ;  Minn.,  Const.,  art.  1,  sec.  12  ;  N.C.,  Rev.  1905,  sec. 
685  ;  Va.,  Code,  sec.  3630.  '  Pa.,  B.  P.  Dig.,  p.  2073,  sec.  3. 

8  Pa.,  B.  Dig.,  p.  246,  sec.  54.  '  Wyo.,  R.S.,  sec.  2592. 

M  Ala.,  Code,  sec.  5858  ;  Wyo.,  R.S.,  sec.  2593. 
'  "  Vogel  V.  Pekoe,  157  111.  339,  42  N.E.  386 ;  Seeleyville  Coal  Co.  v.  McGlosson, 
166  Ind.  561,  77  N.E.  1044;  Schmoll  v.  Lucht,  106  Minn.  188,  118  N.W.  555; 
Singer  Mfg.  Co.  v.  Fleming,  39  Nebr.  679,  58  N.W.  226  (holding  that  the  giv- 
ing of  an  attorney's  fee  is  only  compensatory,  not  penal) . 


WAGES  61 

condemn  them  as  giving  an  unequal  advantage  to  one  class  of 
suitors  ^  or  to  a  plaintiff  over  the  defendant.^  The  statute  of 
Colorado  on  this  subject  avoids  the  latter  difficulty  by  allowing 
an  attorney's  fee  to  be  recovered  by  the  successful  party.^ 

Section  27.  Mechanics'  Liens.  —  The  common  law  gave  a 
lien  on  personal  property  benefited  by  the  labor  or  care  of  a 
person  to  whom  it  had  been  intrusted,  for  the  protection  of  the 
workman's  interests.^  This  right  has  been  extended  by  statute 
to  the  protection  of  laborers  and  mechanics  generally,  for  prac- 
tically every  sort  of  labor,  affecting  real  as  well  as  personal 
property,  and  laws  to  this  effect  are  to  be  found  on  the  statute 
books  of  every  state  and  territory." 

In  order  to  secure  the  benefits  of  the  statutory  lien,  the  pro- 
visions of  the  law  need  be  only  substantially  complied  with,  as 
such  laws  are  to  be  liberally  construed,^  and  where  the  com- 
pliance suffices  to  make  the  facts  certain,  errors  or  superfluities 
will  not  invalidate  the  lien.''  The  difficulty  of  enforcing  a  lien 
on  certain  classes  of  property,  and  the  desire  to  reach  the  party 
properly  chargeable  have  combined  to  lead  to  the  enactment  of 


1  Manowsky  v.  Stephan,  233  111.  409,  84  N.E.  365  (statute  included  all  lien 
claimants)  ;  Johnson  v.  Goodyear  Min.  Co.,  127  Cal.  4,  59  Pac.  304 ;  Atkinson  v. 
Woodmansce,  68  Kans.  71,  74  Pac.  640. 

»  Gulf,  etc.,  R.  Co.  V.  Ellis,  165  U.S.  150,  17  Sup.  Ct.  255;  Davidson  v.  Jen- 
nings, 27  Colo.  187,  60  Pae.  354;  Randolph  v.  Supply  Co.,  106  Ala.  501,  17 
So.  721.  »  Supp.  sec.  2801ul. 

*  Oakes  v.  Moore,  24  Me.  214,  41  Am.  Dec.  379 ;  Morgan  v.  Congdon,  4  N.Y. 
652. 

'  The  law  of  the  District  of  Columbia,  31  U.S.  Stat.  1384,  is  a  fair  type  of  laws 
of  this  clas.s. 

•  Mining  Co.  v.  CuUins,  104  U.S.  176  ;  Hays  v.  Mercier,  22  Nebr.  656,  35  N.W. 
894;  Traction  Co.  v.  Bronnan  87  N.E.  215  (Ind.).  Per  contra.  National  Fire 
Proofing  Co.  v.  Huntington,  81  Conn.  632,  71  Atl.  911. 

»  Hurley  v.  Tucker,  112  N.  Y.  Supp.  980. 


62  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

special  provisions  of  law  where  the  work  is  being  done  by  con- 
tractors on  property  of  the  sort  indicated.  Instead  of  making 
the  thing  worked  on  the  subject  of  the  lien,  the  fund  from  which 
a  contractor  on  public  works  is  to  be  paid  is  subjected  to  a  lien 
on  due  notice  to  proper  authorities,  in  a  few  states.^  The  same 
rule  may  be  applied  to  railroad  construction  and  repair.^  The 
law  may  also  put  upon  the  principal  the  duty  of  withholding 
payments  from  the  contractor  when  notified  of  a  laborer's  claim 
thereon,  to  await  an  adjustment  of  claims.^ 

Section  28.  Bonds  to  Secure  Payment  of  Wages.  —  Still  an- 
other form  of  protection  which  applies  most  frequently  to  labor 
on  public  works,*  though  in  a  few  states  to  railroad  work,^  and  in 
New  York  to  canal  construction,^  is  one  that  requires  contractors, 
prior  to  the  commencement  of  their  work,  to  give  bond  for  the 
payment  of  such  claims  as  would,  under  other  conditions,  give 
rise  to  liens.  Such  laws  exist  in  a  score  of  jurisdictions.  Congress 
having  enacted  one  applicable  to  public  works  of  the  United 
States.^  This  care  for  the  safeguarding  of  the  wages  of  em- 
ployees of  contractors  is  further  expressed  by  laws  compelling 
contracting  stevedores  to  be  licensed  by  public  authority,  and 
to  give  bond ;  *  by  requiring  the  recording  and  publication  of  the 
contract  or  other  conditions  under  which  certain  undertakings 

1  Colo.  Supp.,  sees.  2888-2891 ;  Ind.,  Acts  1905,  ch.  124,  sec.  9 ;  N.Y.,  Con. 
L.,  ch.  33,  sees.  5,  12. 

2  Mich.,  C.  L.,  sees.  5243-5245 ;  Mo.,  R.  S.,  sec.  1057 
s  Miss.,  Code,  sec.  3074 ;  Ohio,  Gen.  Code,  sec.  8325. 

^nd.,  A.S.  sees.  4300b,  4300c,  5592,  5593;  Mich.,  Acts  1905,  No.  187; 
Wash.,  Code,  sees.  5925-5927. 

»  Conn.,  G.S.  sec.  3696;  Me.,  R.S.  ch.  51,  sec.  47;  Minn.,  R.L.,  sees.  2919, 
2920. 

•  Con.  L.,  ch.  5,  sec.  145.  ^  28  Stat.  278 ;  33  Stat.  811. 

8  Md.,  Acts  1898,  ch.  505  ;  N.C.,  Rev.  1905,  sec.  2050. 


WAGES  63 

are  carried  on ;  ^  or  by  making  the  failure  of  a  contractor  to  pay- 
wages  due  out  of  current  receipts  under  the  contract  a  misde- 
meanor,' or  a  felony,^  though  this  latter  law  applies  only  to 
labor  on  public  works.  Laws  of  this  class  come  within  the 
reason  of  lien  laws,  and  have  generally  received  a  liberal  con- 
struction, with  a  view  to  effectuating  their  purpose  to  require 
payment  for  labor  and  materials  from  those  who  profit  by  their 


use 


Section  29.  Liability  of  Stockholders  of  Corporations.  —  The 
earnings  of  employees  of  corporations  are  protected  in  several 
states  by  statutes  that  make  individual  stockholders,  either  in 
designated  classes  of  corporations,^  or  in  business  corporations 
generally,®  liable  for  wage  debts  due  employees. 

Section  30.  Preference  of  Wage  Claims.  —  Of  almost  equal 
universality  with  the  lien  laws  are  laws  making  wages  preferred 
claims  in  the  settlement  of  the  estates  of  deceased  employers 
and  in  cases  of  bankruptcy,  assignments,  executions,  etc.^  Such 
laws  are  constitutional,^  and  apply  to  all  wages  due  at  the  time, 
whether  the  claimant  has  left  service  or  not.^  They  are  vari- 
ously interpreted,  some  courts  holding  that  they  should  be 
strictly  construed,  and  that  they  are  for  the  benefit  of  manual 

« Idaho,  Code,  sec.  638.  «  S.C.,  Cr.  Code,  sec.  338. 

»  Cal.,  Pen.  Code,  sec.  653d. 

*  Hill  V.  American  Surety  Co.,  200  U.S.  197,  26  Sup.  Ct.  168. 

»Ind.,  A.S.  sees.  5077,  5198,  etc.;  N.J.,  G.S.,  pp.  1610,  2319;  N.C.,  Rev. 
1905,  sec.  2556. 

•  Mass.,  Acts  1903,  ch.  437,  sec.  33  ;  Mich.,  Const.,  art.  15,  sec.  7;  Pa.,  B.P. 
Dig.,  p.  423. 

'  Mass.,  R.S.,  ch.  142,  sec.  1;  ch.  163,  sec.  118;  N.Y.,  Con.  L.,  ch.  12,  sec. 
27  ;  ch.  31,  sec.  9  ;  U.S..  30  Stat.  563,  Comp.  St.,  p.  3447.  sec.  64,  etc. 

» Richardson  v.  Thurber.  104  N.Y.  606 ;  Small  v.  Hammcs,  156  Ind.  556,  60 
N.E.  342. 

» In  re  Scott,  148  N.Y.  558,  42  N.E.  1079. 


64  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

laborers  only ;  ^  while  others  rule  that  they  should  receive  a 
"fair  and  liberal  construction,"  ^  and  that  they  are  applicable 
in  the  case  of  a  superintendent  of  laborers,'  or  of  bookkeepers 
and  salesmen,  under  a  law  using  the  term  "employees."  * 
Such  a  law  cannot  be  availed  of  by  an  official  of  a  corporation 
advancing  wages  due  its  employees ;  ^  nor,  it  has  been  held,  by 
an  assignee  of  a  wage  debt,®  though  the  contrary  has  been  held,' 
and  it  is  not  clear  why  the  rule  in  this  case  should  differ  from 
that  in  others  involving  like  conditions.^  The  claim  given  has 
been  held  not  to  amount  to  a  lien,^  though  here  again  other  courts 
have  viewed  the  law  differently ;  ^°  and  it  seems  a  wise  provision 
of  statute  to  declare  the  status  of  such  a  claim.  ^^  Where  the  view 
is  held  that  the  claim  does  not  rank  with  a  lien,  it  will  follow 
that  perfected  lien  claims  take  precedence  over  wage  claims  of 
other  forms ;  ^^  though  a  prior  mortgage  ranks  below  the  claim 
given  by  such  a  statute,"  and  to  hold  otherwise  would  give 
a  lender  gratuitously  the  benefit  of  the  labor  which  goes  into 
the  property  and  gives  it  its  existence  and  value. 

Section  31.   Payment  of  Wages  in  Scrip,  etc.  —  Many  states 

1  People  V.  Remington,  45  Hun  329  (N.Y.) ;  Raynes  v.  Kokomo  Ladder,  etc. 
Co.,  153  Ind.  315,  54  N.E.  1061 ;  Johnston  v.  Barrills,  27  Ore.  256,  41  Pac.  656. 

2  Bass  V.  Doermann,  112  Ind.  390,  15  N.E.  377. 

«  Pendergast  v.  Yanders,  124  Ind.  159,  24  N.E.  724. 

*  Palmer  v.  Van  Santvoord,  153  N.Y.  612,  47  N.E.  915. 
s  Suddath  v.  Gallaher,  126  Mo.  393,  28  S.W.  880. 

•  People  V.  Remington,  supra. 

7  Falconio  v.  Larsen,  31  Oreg.  137,  48  Pac.  703  ;  Union  Trust  Co.  v.  Southern 
Sawmills  &  Lumber  Co.,  166  Fed.  193.         «  White  v.  Stanley,  29  Ohio  St.  423. 

9  Winrod  v.  Walters,  141  Cal.  399,  74  Pac.  1037. 

>»  Coe  V.  R.  Co.,  4  Stew.  (31  N.J.  Eq.)  129  ;  In  re  Slomka,  117  Fed.  688. 

"  N.J.,  Acts  1896,  ch.  185,  sec.  83.     (Declares  claim  a  lien.) 

«  In  re  Kirby-Dennis  Co.,  95  Fed.  116  (C.C.A.). 

»» Bell  V.  Hiner,  16  Ind.  App.  184,  44  N.E.  576 ;  Litzenberg  v.  Trust  Co.,  8 
Utah  15,  28  Pac.  871 ;  Reynolds  v.  Black,  91  Iowa  1,  58  N.W.  922. 


WAGES  65 

have  laws  regulating  the  payment  of  wages  with  respect  to  the 
medium  of  payment.  Payment  in  scrip,  tokens,  store  orders, 
or  non-negotiable  paper  is  in  general  prohibited  by  the  laws  of 
this  class. ^  These  laws  take  a  variety  of  forms,  and  have  been 
the  subject  of  much  litigation  in  disputes  as  to  their  constitu- 
tionality, and  on  this  point  the  courts  do  not  agree.  It  has  been 
held  that  it  was  a  violation  of  such  a  law  to  issue  by  agreement 
an  order  for  merchandise ;  ^  and  that  an  employee  accepting 
scrip  issued  in  violation  of  the  law  had  no  right  of  action  to  recover 
its  face  value,  and  could  convey  none  to  an  assignee.^  The  laborer 
did  not  forfeit  his  right  to  wages,  however,  by  the  acceptance  of 
the  checks,  though  they  were  of  no  value  to  him  even  as  evi- 
dence ;  but  he  might  sue,  as  might  his  assignor  in  a  proper  case, 
in  an  action  for  work  and  labor  performed,  and  recover  a  quantum 
meruit.'*  A  statute  requiring  all  wage  earners  to  be  paid  in 
lawful  money  has  been  held  not  to  be  violated  by  the  issue  be- 
tween paydays  of  checks  for  merchandise  at  the  company's 
store,  monthly  balances  being  paid  in  cash,  but  no  unused  checks 
being  redeemed ;  ^  and  a  law  prohibiting  the  issue  of  non-trans- 
ferable scrip,  and  requiring  the  redemption  of  all  scrip  at  its 
"face  value"  in  the  hands  of  the  holder,  was  said  not  to  authorize 
an  assignee  of  scrip  payable  in  merchandise  to  demand  payment 
in  money.^  A  law  that  is  unique  in  the  method  proposed  for 
discouraging  the  use  of  scrip  is  one  that  levies  a  tax  of  twenty-five 

•  111..  R.S.,  ch.  98,  sec.  18;    Ga.,  Civ.  Code,  sec.  1871 ;  Ind.,  A.S.,  sec.  7060; 
Acts  1903,  ch.  171 ;  N.J.,  G.S.,  p.  2343 ;  N.Y.,  Con.  L.,  ch.  31,  sec.  10. 

«  Cumberland  Glass  Mfg.  Co.  v.  State,  58  N.J.L.  224,  33  Atl.  210. 
»  Naglebaugh  v.  Mining  Co.,  21  Ind.  App.  551,  51  N.E.  427. 

•  Naglebaugh  v.  Mining  Co.,  supra. 

'  Avent  Beattyville  Coal  Co.  v.  Com.,  96  Ky.  218,  28  S.W.  502. 

•  Marriner  v.  Roper  Co..  112  N.C.  164,  16  S.E.  906. 


66  LAW  OP  THE  EMPLOYMENT  OP  LABOR 

per  cent  on  all  scrip,  coupons,  or  orders  issued  in  payment  for 
wages  and  not  redeemed  in  money  within  thirty  days  after  the 
date  of  such  issue.^  Laws  that  prohibit  the  payment  of  wages 
in  merchandise,  orders,  etc.,  are  obvious  and  direct  interferences 
with  the  freedom  of  contract,  but  a  law  to  this  effect  was  en- 
forced in  New  Jersey.^  A  law  requiring  employers  to  redeem 
in  cash  at  their  face  value  all  coupons,  scrip,  or  orders  issued 
by  them  in  payment  of  wages  has  been  held  constitutional,^ 
and  is  equally  binding  on  foreign  corporations  as  on  those  formed 
within  the  state ;  *  but  a  penal  provision  authorizing  imprison- 
ment for  failure  to  redeem  is  unconstitutional,  as  such  action 
would  amount  to  imprisonment  for  debt.^  An  assignee's  rights 
are  the  same  as  those  of  the  original  holder,  and  no  inquiry  can 
be  raised  as  to  the  amount  actually  paid  by  the  assignee  for 
his  claim,^ 

On  the  other  hand  is  the  ruling  that  a  provision  that  wages 
may  be  paid  only  in  lawful  money  interferes  with  the  right  of 
contract,  and  is  void ;  ^  so  of  a  law  that  prohibits  the  issue  of 
orders,  etc.,  unless  negotiable  and  redeemable  at  their  face 
value  in  lawful  money.^    Laws  applying  only  to  mining  and 

1  Pa.,  B.  Dig.  p.  874. 

»  Cumberland  Glass  Mfg.  Co.  v.  State,  58  N.J.L.  224,  33  Atl.  210. 

» Knoxville  Iron  Co.  v.  Harbison,  183  U.S.  13,  22  Sup.  Ct.  1 ;  Johnson,  Lytic 
&  Co.  V.  Spartan  Mills,  68  S.C.  339,  47  S.E.  695  ;  Union  Sawmill  Co.  v.  Felsenthal, 
84  Ark.  494.  108  S.W.  217  ;  Shortall  v.  Bridge,  etc.,  Co.,  45  Wash.  290,  88  Pac. 
212 ;  Peel  Splint  Coal  Co.  v.  State,  36  W.  Va.  802,  15  S.E.  1000. 

*  Dayton  Coal  &  I.  Co.  v.  Barton,  183  U.S.  23,  22  Sup.  Ct.  5. 

»  State  V.  Paint  Rock  Coal  &  Coke  Co.,  8  Pickle  (Tenn.)  81,  20  S.W.  499. 

•  Harbison  v.  Iron  Co.,  103  Tenn.  421,  53  S.W.  955. 

'  Godcharles  v.  Wigeman,  113  Pa.  St.  431,  6  Atl.  354  ;  Jordan  v.  State,  51  Tex. 
Cr.  App.  531, 103  S.W.  633  ;  Kelleyville  Coal  Co.  v.  Harrier,  207  111.  624,  69  N.E. 
927. 

»  State  V.  Missouri  Tie,  etc.,  Co.,  181  Mo.  536,  80  S.W.  933. 


WAGES  67 

manufacturing  companies  have  been  declared  unconstitutional, 
as  special  and  discriminatory ;  ^  so  of  one  exempting  farm  labor 
from  its  provisions,^  or  one  applicable  to   corporations   only.' 

•State  V.  Goodwill,  33  W.  Va.  179,  10  S.E.  285;  State  v.  Loomis,  115  Mo. 
307,  22  S.W.  350  ;  Dixon  v.  Poe.  159  Ind.  492,  65  N.E.  518. 

*  Kelley ville  Coal  Co.  v.  Harrier,  supra. 

*  State  V.  Haun,  61  Kans.  146, 59  Pac.  340.  It  is  perhaps  of  sufficient  import- 
ance to  notice  here  the  status  of  corporations  in  respect  of  restrictive  legislation 
of  the  sort  under  discussion,  inasmuch  as  diametrically  opposite  views  seem  to  be 
entertained  by  the  courts  of  different  states.  Thus  in  the  Haun  case,  corpora- 
tions are  said  to  be  persons  within  the  guarantee  of  the  fourteenth  amendment 
as  to  the  equal  rights  of  persons  (citing  Santa  Clara  Co.  v.  Southern  P.  R.  Co., 
118  U.S.  394,  6  Sup.  Ct.  1132  ;  Pembina  Min.,  etc.,  Co.  v.  Pennsylvania,  125  U.S. 
181,  8  Sup  Ct.  737)  and  entitled  to  protection  against  unfair  discrimination  as 
are  other  persons.  Other  courts  have  declared  a  law  unconstitutional  that  dis- 
criminated against  corporations  as  compared  with  other  employers  (Johnson  r. 
Goodyear  Min.  Co.,  127  Cal.  4,  59  Pac.  304;  Toledo,  etc.,  R.  Co.  v.  Long,  169 
Ind.  316,  82  N.E.  757;  O'Connell  r.  Lumber  Co.,  113  Mich.  124,  71  N.W.  449; 
Harbison  v.  Iron  Co.,  103  Tenn.  421,  53  S.W.  955  ;  Santa  Clara  Co.  v.  Southern 
P.  R.  Co.,  supra)  ;  while  the  supreme  court  of  Arkansas  held  that  while  the  law 
governing  the  payment  of  wages  to  discharged  employees  might  be  invalid  as  to 
individual  employers,  it  was  nevertheless  valid  as  to  corporations  (Lecp  v.  R. 
Co.,  58  Ark.  507,  25  S.W.  75) ;  and  on  the  point  being  submitted  by  the  legisla- 
ture to  the  supreme  court  of  Rhode  Island,  a  law  limiting  the  hours  of  labor  of 
employees  on  street  railways  was  declared  valid,  one  of  the  reasons  assigned 
being  that  the  law  applied  to  corporations.  (Ten  Hour  Law,  24  R.I.  603, 54  Atl. 
602.) 

It  should  be  observed  that  the  doctrine  applied  by  the  courts  of  Arkansas  and 
Rhode  Island,  which  was  also  approved  by  the  Supreme  Court  of  the  United 
States  (St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Paul,  173  U.S.  404,19  Sup.  Ct.  419  ;  Ham- 
mond Packing  Co.  v.  State,  212  U.S.  322.  29  Sup.  Ct.  370)  was  expressly  based  on 
the  reserved  power  of  the  state  to  amend  the  charters  of  corporations,  which  are 
the  creatures  of  the  state.  This  view  was  taken,  and  for  the  reason  assigned,  in 
cases  in  which  laws  requiring  railroad  and  other  corporations  to  pay  their  em- 
ployees weekly  were  upheld.  (Lawrence  v.  Rutland  R.  Co.,  80  Vt.  370,  67  Atl. 
1091 ;  State  v.  Brown  <fe  Sharpe  Mfg.  Co.,  18  R.I.  16,  25  Atl.  246) ;  so  that  the 
real  difference  would  appear  to  be  in  the  express  provisions  of  the  constitutions  of 
the  various  states  as  to  reserved  powers  over  corporate  bodies,  or  in  the  views 
taken  by  the  courts  as  to  the  fair  and  just  implication  of  such  resident  power 
apart  from  explicit  statements.     There  is  no  reasonable  question  that  corpora- 


68  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

In  the  last  named  case  it  was  also  held  that  a  provision  exempt- 
ing corporations  employing  fewer  than  ten  men  was  discrimina- 
tory and  would  of  itself  invalidate  the  law.' 

A  case  in  which  the  law  was  declared  valid,  but  was,  by  con- 
struction, apparently  largely  deprived  of  its  intended  force,  was 
one  in  which  the  statute  requiring  certain  corporations  to  pay 
their  employees  only  in  cash  was  held  not  to  prevent  employees 
from  drawing  orders  on  their  employers  in  favor  of  merchants 
from  whom  they  had  purchased  goods,  the  amounts  of  such 
orders  to  be  deducted  from  the  wages  due  the  employees  draw- 
ing the  same.2     The  effect  and  practical   working  of  such  a 

tions  are  persona  in  the  eye  of  the  law,  with  such  capacities  as  the  law  creat- 
ing them  bestows.  The  view  would  not  seem  to  be  an  unreasonable  one,  how- 
ever, that  was  taken  in  a  recent  case,  that  the  nature  of  a  corporation  as  a  creature 
of  law,  —  a  person  only  by  a  sort  of  legal  fiction,  —  and  incapable  of  subjection 
to  certain  penalties,  as  imprisonments,  warrants  different  forms  of  punishment  in 
case  of  violations  of  the  law  than  are  provided  against  individuals  guilty  of  like 
offenses  (State  v.  Standard  Oil  Co.,  218  Mo.  1,  116  S.W.  902)  ;  and  if  discrim- 
inations of  this  sort  are  thus  justifiable,  it  is  not  difficult  to  realize  that  a  like 
course  of  reasoning  will  lead  to  corresponding  rulings  where  other  phases  of 
corporate  and  individual  rights  and  remedies  are  the  subject  of  consideration,  the 
wider  scope  of  the  power  which  the  state  possesses  over  corporations  and  joint 
stock  associations  in  and  of  itself  affording  a  ground  for  distinctions  between 
them  and  individuals.     (Hammond  Packing  Co.  v.  State,  supra.) 

Certain  distinctions  hold  between  corporations  and  individuals  because  of  the 
fact  that  although  persons,  and  thus  entitled  to  an  equality  of  protection  and  the 
right  not  to  be  deprived  of  their  property  without  due  process  of  law,  under  the 
provisions  of  the  fourteenth  amendment,  corporations  are  not  citizens,  entitled 
to  all  the  privileges  and  immunities  of  citizens  in  the  several  states,  under  the 
provisions  of  Article  4,  section  2,  clause  1,  of  the  Constitution,  or  of  the  fourteenth 
amendment  thereto  ;  since  the  term,  "citizens"  "applies only  to  natural  persons, 
members  of  the  body  politic  owing  allegiance  to  the  state,  not  to  artificial  per- 
sons created  by  the  legislature,  and  possessing  only  such  attributes  as  the  legis- 
lature has  prescribed."  (Pembina  Min.  Co.  v.  Pennsylvania,  supra ;  Orient 
Ins.  Co.  V.  Daggs,  172  U.S.  557,  19  Sup.  Ct.  281.) 

'  See  also  Union  Sawmill  Co.  v.  Felsenthal,  supra. 

»  Shaffer  v.  Union  Min.  Co.,  55  Md.  74. 


WAGES  69 

method  would  differ  in  no  respect  from  the  issue  of  orders  by 
the  employer,  to  be  presented  by  the  workman  in  payment  for 
goods  to  be  purchased. 

Diverse  ruHngs  are  found  as  to  the  status  of  the  tokens  in  com- 
mon use  where  payments  in  other  than  lawful  money  are  al- 
lowed. Thus  it  is  said  that  they  possess  none  of  the  essential 
qualities  of  a  negotiable  instrument  payable  to  the  bearer,  and 
that  mere  possession  raises  no  presumption  as  to  rights ;  ^ 
while  on  the  other  hand  they  have  been  held  to  be  promises  in 
writing  to  pay,  and  the  party  issuing  them  was  not  allowed  to 
be  heard  to  oppose  the  legal  presumption  that  they  were  based 
on  a  valuable  consideration,'  a  conclusion  that  appears  to  be 
well  founded  as  against  a  corporation  issuing  tokens  stamped 
with  a  mark  apparently  intended  to  indicate  value,  and  issued 
by  it  in  adjustment  of  its  affairs  with  others. 

Section  32.  Company  Stores.  —  Within  the  meaning  of  the 
laws  regulating  the  medium  of  payment  of  wages,  and  subject 
to  the  same  rules  of  construction,  are  laws  regulating  the  opera- 
tion of  what  are  known  as  company  stores.  Such  stores  may 
be  prohibited,^  or  they  may  merely  be  forbidden  to  charge  any 
higher  price  for  goods  sold  to  employees  than  that  charged  for 
goods  sold  to  other  customers  for  cash.^  Some  of  these  laws 
relate  only  to  designated  classes  of  employers,  and  would  seem 
to  fall  under  the  strictures  of  the  fourteenth  amendment  of  the 
Federal  Constitution  as  to  uniformity  and  equality  of  legislation  ; 
and  such  has  been  the  view  taken  by  some  of  the  state  courts 


«  Attoyac  River  Lumber  Co.  v.  Payne,  122  S.W.  278.     (Tex.  Civ.  App.) 

*  Kentucky  Coal  Mining  Co.  v.  Mattingly,  133  Ky.  526,  118  S.W.  350. 
•Colo.,  Supp.,  scr.  2801fl  ;   Pa.,  B.  P.  Dig.,  p.  1385. 

*  Ind.,  A.S.,  sec.  7061 ;  Ohio,  Gen.  Code,  sec.  12945  ;  Va.,  Code,  sec.  3657d. 


70  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

of  Isst  resort,^  In  the  West  Virginia  case  cited,  the  court  also 
denounced  the  law  as  an  "insulting  attempt  to  put  the  laborer 
under  legislative  tutelage." 

Section  33.  Freedom  oj  Employees  as  Traders,  etc.  —  Laws 
directed  to  the  subject  of  freedom  in  the  choice  of  stores  or  places 
for  trading  come  within  the  same  class  of  laws  with  the  above, 
and  are  found  in  connection  therewith,  their  intention  being,  as 
set  forth  in  the  opinion  in  a  case  involving  the  constitutionality 
of  the  statute,^  to  correct  the  abuse  practiced  on  workmen  "by 
forcing  them,  directly  or  indirectly,  into  dealing  with  the  '  com- 
pany stores,'  where  goods  at  exorbitant  prices  were  paid  for 
wages  instead  of  money."  In  this  case  a  statute  was  upheld 
that  is  restricted  in  its  application  to  mines  operating  with  ten 
or  more  employees,^  the  court  holding  that  the  statute  was  au- 
thorized by  the  state  constitution,  which  requires  the  payment  of 
wages  in  lawful  money ;  and  that  the  discrimination  as  to  mines 
employing  ten  or  more  persons  was  not  offensive,  since  in  cases 
where  a  smaller  number  was  employed,  the  evil  aimed  at  could 
hardly  be  practiced.  Laws  of  this  description  are  found  in  a 
number  of  states,*  while  in  a  few,  restrictions  in  the  choice  of 
boarding  houses  are  similarly  forbidden.^  The  constitutionality 
of  this  class  of  laws  is  generally  sustained,^  though  apart  from 

»Frorer  v.  People,  141  111.171,31  N.E.  395;  Luman  v.  Hitchens  Bros.  Coal 
Co.,  90  Md.  14,  44  Atl.  1051 ;  State  v.  Fire  Creek  Coal  <feCoke  Co.,  33  W.  Va. 
188,  10  S.E.  288. 

«  Commonwealth  v.  Hillside  Coal  Co.,  22  Ky.  L.  R.  559,  58  S.W.  441. 

'  Ky.,  Stat.,  sec.  2739A. 

« Colo.,  Supp.,  sec.  2801f  1 ;  Ind.,  A.S.,  sec.  7073 ;  Ohio,  Gen.  Code,  sec. 
12944 ;  Wash.,  C.  &  S.,  sec.  3306,  etc. 

«  Mont.,  Acts  1903,  ch.  102 ;  Nev.,  Acts  1903,  ch.  124 ;  Oreg.,  Acts  1907,  eh. 
192 ;  Utah,  C.L.,  sec.  4487x25. 

•  Shortall  v.  Bridge,  etc.,  Co.,  45  Wash.  290,  88  Pac.  212  ;  Peel  Splint  Coal  Co. 
V.  State,  36  W.  Va.  802,  15  S.E.  1000. 


WAGES  71 

legislation  to  the  contrary,  it  has  been  held  that  an  employer  may 
lawfully  require  his  employees  to  refrain  from  trading  or  other- 
wise dealing  with  a  designated  person,  on  the  ground  that  he  has 
the  right  to  make  the  terms  of  his  contract  such  as  he  chooses,  if 
not  illegal,  and,  if  accepted  by  the  employee,  they  are  binding 
upon  him,  and  a  third  person  has  no  right  to  interfere  therewith.^ 
This  accords  with  the  principle  laid  down  in  a  leading  case  ^ 
that  an  employee  is  free  to  work  or  refuse  to  work,  at  his  option, 
the  right  of  making  terms  resting  with  the  contracting  parties, 
who  may  refuse  as  between  themselves  to  deal  with  any 
designated  person  or  persons,  or  may  accept  such  a  condition 
laid  down  by  either  party.  This  is  clearly  the  recognized  prin- 
ciple of  freedom  of  contract,  and  where  lawfully  exercised  the 
question  of  motive  cannot  be  raised,  since  malice  cannot  make 
that  illegal  which  is  in  itself  legal.^  While  the  enforcement  of 
such  a  restriction  by  an  employer  does  not  involve  the  element 
of  conspiracy,  its  likeness  to  the  boycott,  as  usually  enforced  by 
the  mutual  agreement  of  several,  has  been  pointed  out ;  and  it  is 
likewise  clear  that  if  employers  may  so  dictate  as  to  trade,  etc., 
the  employee  may  reciprocally  dictate  as  to  employment,  so 
that  the  closed  shop,  so-called,  comes  within  the  same  principle. 
The  statutes  above  cited  relate  to  the  employees'  rights  only, 
and  do  not  assume  to  confer  upon  any  merchant  or  other  person 
injured  by  a  violation  thereof  the  right  to  sue  for  damages  oc- 
casioned by  a  violation.  Apart  from  statute,  however,  it  has 
been  held  that  an  employer  is  liable  for  damages  to  an  injured 

'  Heywood  v.  Tillaon,  75  Me.  225 ;  Payne  ».  Western,  etc.,  R.  Co.,  81  Tenn. 
507,  49  Am.  Rep.  66G.     (Sec  strong  dissenting  opinion  in  this  case.) 

»  Com.  V.  Hunt,  4  Mete.  133  (Mass.).  See  also  Carcw  v.  Rutherford,  100  Mass. 
14,  8  Am.  Rep.  287. 

» Jenkins  v.  Fowler,  24  Penn.  308. 


72  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

third  party  when  as  a  mere  matter  of  personal  preference,  or 
the  expression  of  a  spirit  of  malice  or  revenge,  and  not  from 
the  actual  interests  of  his  business,  he  undertakes  to  require  his 
employees  not  to  patronize  certain  merchants  or  hotel  keepers.^ 
This  view  is  directly  opposed  to  that  held  in  the  Heywood  and 
Payne  cases  cited  above ;  and  while  it  may  not  accord  with  the 
abstract  legal  principle  of  freedom  of  contract,  the  economic 
fact  that  operates  in  determining  the  action  of  legislatures  in  the 
enactment  of  laws  undertaking  to  place  the  employee  on  a  foot- 
ing by  statute  that  he  is  unable  to  secure  unaided,  would  seem 
to  favor  the  prohibition  of  such  restrictive  contracts  as  seek  to 
control  the  liberty  of  the  employee  in  the  spending  of  his  earn- 
ings, since  to  permit  the  contrary  offers  too  great  opportunity 
for  oppression  and  extortion  of  the  employee  himself,  regardless 
of  the  effect  on  third  persons. 

Freedom  in  the  selection  of  the  family  physician  is  protected 
by  a  statute  of  Tennessee,^  which  also  prohibits  the  retention 
of  any  part  of  an  employee's  wages,  without  his  full  consent,  for 
the  avowed  purpose  of  paying  the  salary  of  a  company  doctor; 
while  another  state  forbids  employers  to  require  the  taking  out 
of  accident  insurance  with  any  specified  company.'  This 
statute  was  not  intended,  however,  to  interfere  with  the  organiza- 
tion of  relief  funds  which  employees  may  voluntarily  join,  and 
for  which  the  employer  may  withhold  the  agreed  contribution 
of  the  employee  from  his  wages. 

»  Railway  Co.  v.  Greenwood,  2  Texas  Civ.  App.  76,  21  S.W.  559  ;  Hanchett  v. 
Chiatovich,  101  Fed.  742  (C.C.A.).  See  also  dissenting  opinion  in  the  Payne 
case,  supra. 

»  Code,  sees.  6879,  6880.  »  Mich.,  C.L.,  sees.  8584-8586. 


CHAPTER  III 

HOURS   OF  LABOR 

Section  34.  Regulation  of  Hours  of  Labor.  —  The  common 
law  attempted  no  definition  of  the  length  of  a  day's  labor,  that 
being  a  matter  to  be  determined  either  by  the  parties  to  the  con- 
tract of  hiring  or  by  the  custom  of  the  trade  or  locality.  Courts 
will,  however,  look  into  the  facts  in  any  given  case  to  determine 
what  was  reasonable  in  the  circumstances.^  Pay  for  overtime 
is  not  favored,  in  the  absence  of  particular  stipulations,  as 
services  rendered  under  a  contract  are  supposed  to  be  covered 
thereby.^  So  if  some  time  is  lost  by  the  workman,  and  the 
employer  permits  it  without  remonstrance,  he  cannot  after- 
wards withhold  pajTnent.^ 

Unless  the  nature  of  the  employment  or  an  express  contract 
forbids,  the  employee's  time  outside  of  his  hours  of  service  may 
be  occupied  in  work  for  others  if  such  work  is  not  incompatible 
with  his  duty  to  his  employer.*  But  engaging  in  work  that 
leads  to  a  conflict  of  interests  will  not  be  sanctioned.*  This 
does  not  prevent  an  employee  from  perfecting  patents  and  re- 

»  Luske  r.  Hotchkiss,  37  Conn.  219,  9  Am.  Rep.  314. 

'  Guthrie  v.  Merrill,  4  Kans.  187  ;  U.S.  v.  Martin,  94  U.S.  400  ;  Fittgerald  v. 
Paper  Co.,  96  Me.  220,  52  Atl.  655. 

»  WUley  V.  Warden,  27  Vt.  655. 

*  Stone  V.  Bancroft,  139  Cal.  78,  70  Pac.  1017  ;  Hillsboro  Nat.  Bank  r.  Hyde, 
7  N.  Dak.  400.  75  N.W.  781. 

'  Storey  v.  Transportation  Co.,  17  Hun  579  (N.Y.). 

73 


74  LAW  OF  THE  EMPLOYMENT  OP  LABOR 

taining  the  right  thereto ;  ^  though  an  enforceable  agreement 
may  be  made  by  an  employee  to  assign  an  interest  in  all  patents 
secured  by  him,^  or  the  entire  title  may  be  secured  to  the  em- 
ployer by  a  suitable  contract.^  Where  the  employee  uses  the 
property  or  labor  of  his  employer  to  perfect  an  invention,  and 
assents  to  the  use  of  it  by  his  employer,  he  cannot  by  afterward 
obtaining  a  patent  compel  the  employer  to  pay  a  royalty,  but  will 
be  presumed  to  have  given  him  a  license  to  use  the  invention.* 
Statutory  regulation  of  the  working  time  has  been  under- 
taken in  a  number  of  states,  and  for  employees  engaged  in  inter- 
state commerce  by  the  United  States.^  The  state  laws  are 
sometimes  general  in  effect,  fixing  the  number  of  hours  that 
constitute  a  day's  labor  generally,^  domestic  and  farm  labor 
being  commonly  excepted ;  or  they  may  fix  the  hours  of  labor 
in  designated  employments,  as  in  smelters,  underground  mines, 
etc.,^  where  work  is  done  in  compressed  air,^  on  railroads,^ 
street  railways,^''  in  drugstores,^^  bakeries,^^  a^d  brickyards.^^ 
The  hours  of  labor  on  public  works  are  limited  in  a  number  of 

»  Solomons  v.  U.S.,  137  U.S.  342, 11  Sup.  Ct.  88 ;  Joliet  Mfg.  Co.  v.  Dice,  105 
111.  649. 

»  Wright  V.  Vocalion  Organ  Co..  148  Fed.  209,  78  CCA.  183. 

•  Hulse  V.  Bonsack  Mach.  Co.,  65  Fed.  864,  13  CCA.  180. 

•  Gill  V.  United  States,  160  U.S.  426,  16  Sup.  Ct.  322  ;  McClurg  v.  Kingsland, 
42  U.S.  187  (1  Howard  202). 

»  Act  of  March  4,  1907,  34  Stat.  1415. 

•Ind.,  A.S.,  sec.  7052;  Minn.,  R.L.,  sec.  1798;  N.Y.,  Con.  L.,  ch.  31,  sec.  3, 
etc. 

^  Colo.,  Acts  1905,  ch.  119  ;  Mo.,  Acta  1905,  p.  236  ;  Utah,  CL.,  sec.  1537,  etc. 
«  N.Y.,  Acts  1909,  ch.  291. 

•  Conn.,  Acts  1907,  ch.  242 ;  Ind.,  Acts  1907,  ch.  131 ;  N.Y.,  Con.  L.,  ch.  31, 
sec.  7. 

"  Md.,  Pub.  G.  L.,  art.  4,  sec.  793  ;  Mass.,  Acts  1906,  ch.  463,  pt.  3,  sec.  95. 

«i  Cal..  Acts  1907,  ch.  224. 

"  N.J.,  Acts  1905,  ch.  102.  "  N.Y.,  Con.  L.,  ch.  31,  sec.  5. 


HOURS  OF  LABOR  75 

states/  and  by  the  Federal  government.^  Laws  designating 
the  hours  of  labor  on  public  roads  are  found  in  many  states, 
though  they  apply  principally  to  the  working  out  of  taxes,  and 
relate  less  to  the  employment  of  labor  than  to  a  regulation  by 
the  people,  acting  through  their  representatives,  of  the  time  of 
their  own  service  in  this  particular.  They  are  significant,  how- 
ever, as  indicating  what  is  considered  a  day's  labor  in  a  form  of 
pubhc  work,  though  they  establish  a  minimum  day  (usually 
eight  hours),  rather  than  fibc  a  Umit  beyond  which  labor  is  for- 
bidden. 

Unless  overtime  work  is  prohibited,  the  employer  may  require 
additional  hours  of  service,  either  by  contract,  or  in  accordance 
with  understood  custom,  and  no  additional  compensation  will 
be  recoverable  therefor.'  If  overtime  labor  is  prohibited, 
and  is  performed  at  the  request  of  the  employer,  it  has  been  held 
that  the  employee  can  recover  no  pay  for  such  excess  labor, 
being  equally  a  violator  of  the  law  with  his  employer,  and  unable 
to  reap  by  law  the  benefit  of  his  illegal  act ;  *  so  also  of  the 
recovery  of  damages  for  injuries  received  while  working  beyond 
the  prescribed  period,^  though  this  is  undoubtedly  a  hard 
interpretation  of  the  law,  since  such  an  act  cannot  be  said  to  be 
more  than  an  occasion  for  the  injury,  and  not  usually  in  any 
way  the  cause  of  it.     (See  p.  81.) 

Additional  pay  may  be  required  by  statute  where  time  beyond 

•  Colo.,  Supp.,  sees.  2801a  to  2801i ;  Kans.,  G.S.,  sees.  3827  to  3829 ;  N.Y., 
Con.  L.,  ch.  31,  sec.  3  ;  Pa.,  Acts  1897,  No.  374,  etc. 

«  Act  of  August  1,  1892,  27  Stat.  340. 

»  U.S.  V.  Martin,  94  U.S.  400 ;  Luske  v.  Hotchkiss,  37  Conn.  219,  9  Am.  Rep. 
3M. 

•  Short  V.  Bullion-Beck  Min.  Co.,  20  Utah  20,  57  Pac.  720. 

•  Lloyd  c.  R.  Co.,  151  N.C.  536,  66  S.E.  604. 


76  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

the  fixed  limit  is  worked.^  The  Michigan  statute  to  this  effect 
was  held  not  to  apply  to  employment  by  the  week,  month,  or 
year.2  A  statute  of  Nebraska^  fixing  the  hours  of  labor  at 
eight  per  day,  excepting  farm  and  domestic  labor  from  its  pro- 
visions, and  requiring  extra  pay  for  overtime  labor,  was  held  to 
be  unconstitutional,  both  as  denying  the  right  of  contract  and 
as  effecting  an  unjust  discrimination  against  the  excepted 
classes  of  labor."*  In  the  present  state  of  opinion  it  cannot  be 
anticipated  that  any  law  regulating  generally  the  hours  of  labor 
of  adult  males  will  be  sustained  as  a  restrictive  or  mandatory 
measure,  their  force  being  nothing  more  than  directory,  and 
subject  to  control  by  contract. 

Of  like  nature  with  laws  of  this  class  was  a  law  fixing  the 
number  of  pounds  that  make  a  ton,  where  the  ton  is  the  unit 
used  as  the  basis  for  the  payment  of  wages.^  It  was  held  that 
such  a  law  cannot  be  defeated  by  merely  setting  forth  a  custom 
of  the  employer  to  use  a  different  standard ;  but  if  there  was 
a  special  contract,  or  if  it  appears  that  the  employee  knew  of 
the  custom  at  the  time  of  hiring,  no  recovery  can  be  had  for  the 
excess  over  the  legal  weight.® 

Section  35.  Constitutionality  of  Statutes  Limiting  the  Hours  of 
Labor.  —  Interference  with  the  freedom  of  contract  in  such 
regard  is  of  course  justifiable  if  shown  to  be  a  proper  exer- 
cise of  the  police  power.  The  limitation  of  the  hours  of 
labor  of  railroad  employees  is  held  to  be  valid  as  not  only 
benefiting  the  employees,  but   also  as  conducing  to  the  pub- 

i  Mich..  C.L.,  sec.  5453  ;   Cal.,  Pol.  Code.  sec.  3246. 

*  Schurr  v.  Savigny,  85  Mich.  144,  48  N.W.  547.  «  Acts  1891,  ch.  54. 

*  Low  V.  Rees  Printing  Co.,  41  Nebr.  127,  59  N.W.  362. 
«  Pa.,  Acts  1834.  p.  527,  sec.  17. 

*  Godcharies  v.  Wigeman,  113  Pa.  431,  6  Atl.  354. 


HOURS  OF  LABOR  77 

lie  safety;'  though  a  lower  court  of  the  State  of  Ohio  de- 
clared such  a  law  an  unwarranted  invasion  of  the  right  of 
contract.^  It  has  been  held  that  state  laws  on  the  subject 
will  have  to  give  way  to  the  Federal  law  applicable  to  in- 
terstate commerce,  enacted  under  the  commerce  power  of 
Congress,  on  account  of  the  difficulty  of  separating  inter- 
state from  intrastate  operations ;  but  the  better  view  seems 
to  be  that  they  may  exist  coordinately,  if  not  in  conflict.' 
For  labor  in  mines,  smelters,  and  other  places  where  work- 
men are  exposed  to  unhealthful  conditions,  it  is  the  welfare 
of  the  employee  alone  that  is  looked  to,  this  fact  being  suf- 
ficient, on  a  proper  showing,  to  support  the  law."*  If,  however, 
health  is  not  shown  to  be  in  jeopardy,  the  law  will  fall.*  The 
Colorado  supreme  court  declared  unconstitutional  a  law  limiting 
the  hours  of  labor  of  employees  in  mines  and  smelters,  declaring 
that  the  state  had  no  right  to  interfere  in  a  private  business,  in 
which  no  matter  of  public  welfare  is  involved,  merely  to  protect 
the  health  of  an  adult  male,  when  the  act  prohibited,  if  com- 
mitted, "will  injure  him  who  commits  it,  and  him  only."® 
Fortunately  such  reasoning  has  not  appealed  to  our  courts 
generally.  The  limitation  condemned  by  the  court  is  now 
embodied  in  the  constitution  of  the  State  of  Colorado.^ 

«  state  V.  Northern  P.R.  Co.,  36  Mont.  582,  93  Pac.  945. 

»  Wheeling,  B.  &  T.  R.  Co.  v.  Gilmore,  8  Ohio  C.  C.  Rep.  658. 

'  Compare  State  v.  Missouri  P.  R.  Co.,  212  Mo.  658,  111  S.W.  500;  State  v. 
Northern  P.  R.  Co.,  supra,  and  State  v.  Chicago,  etc.,  R.  Co.,  136  Wis.  407.  117 
N.W.  686,  with  Lloyd  v.  R.  Co.,  151  N.C.  536,  66  S.E.  604,  and  People  v.  Erie  R. 
Co.,  198  N.Y.  369,  91  N.E.  849.  See  also  Smith  v.  Alabama,  124  U.S.  465,  8 
Sup.  Ct.  564. 

*  Holdon  V.  Hardy,  169  U.S.  366,  18  Sup.  Ct.  383  ;  State  v.  Cantwell,  179  Mo. 
245,  78  S.W.  569  ;  State  v.  Thompson.  15  Wyo.  136.  87  Pac.  433. 

»  Lochner  v.  New  York.  198  U.S.  45.  25  Sup.  Ct.  539.     (Bakery  employees.) 

•  In  re  Morgan,  26  Colo.  415,  58  Pac.  1071.  '  Art.  5,  sec.  25a. 


78  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

A  law  regulating  the  hours  of  labor  of  employees  on  street  rail- 
ways was  held  to  be  within  the  power  of  the  legislature  to  enact, 
and  therefore  constitutional,  on  three  grounds,  —  that  it  dealt 
with  public  corporations,  which  are  created  by  and  subject  to 
legislative  action  and  control ;  that  it  was  the  regulation  of  the 
use  of  a  public  franchise;  and  that  it  provided  for  the  public 
safety  by  protecting  employees  from  excessive  strain.^ 

The  boundary  line  between  constitutional  and  unconstitu- 
tional laws  of  this  class  is  jealously  guarded,  and  is  not  yet 
clearly  defined.  Thus  a  New  York  statute  limiting  the  hours 
of  labor  in  bakeries  ^  was  upheld  by  the  highest  court  of  the 
state  by  a  majority  of  one,^  and  rejected  by  the  Federal  Su- 
preme Court  by  a  like  majority,*  the  entire  difficulty  being  the 
difference  of  view  between  the  courts  and  the  members  com- 
posing them  as  to  what  is  and  what  is  not  a  proper  exercise  of 
the  police  power  in  behalf  of  the  public  welfare. 

It  would  appear  to  be  a  sufficient  support  for  laws  limiting 
the  hours  of  labor  on  public  works  that  the  state  has  a  right  to 
prescribe  the  conditions  under  which  its  own  work  shall  be  per- 
formed.^ Municipal  corporations  are  but  auxiliaries  of  the 
state  for  the  purposes  of  local  government,  and  exercise  their 
powers  under  grants  from  the  state,  subject  to  restriction  or 
enlargement,  as  the  legislature  may  from  time  to  time  see  fit  to 
act.^  A  contrary  view  has  been  taken,  however,  which  is  to 
the  effect  that  such  corporations  are,  in  the  conduct  of  local 

1  In  re  Ten-hour  Law,  24  R.I.  603,  54  Atl.  602.         »  Con.  L.,  ch.  31,  sec.  110. 

»  People  V.  Lochner,  177  N.Y.  145,  69  N.E.  373. 

«  Lochner  v.  New  York,  198  U.S.  45,  25  Sup.  Ct.  539. 

•i  Williams  v.  Eggleston,  170  U.S.  304,  18  Sup.  Ct.  617;  Atkin  v.  Kansas,  191 
U.S.  207,  24  Sup.  Ct.  124 ;  Keefe  v.  People,  37  Colo.  317,  87  Pac.  791,  Ryan  v. 
City  of  New  York,  177  N.Y.  271,  69  N.E.  599. 


HOURS  OF  LABOR  79 

affairs  and  the  expenditure  of  money  raised  by  local  taxation 
on  the  same  footing  with  private  corporations,  and  not  sub- 
ject to  the  abridgment  of  their  right  to  contract  freely.^ 

Section  36.  Sunday  Labor.  —  Where  a  contract  is  for  the 
entire  time  and  services  of  an  employee,  whether  or  not  this 
includes  labor  on  Sunday  depends  on  custom  and  the  manner  of 
conducting  the  business.^  The  common  law  does  not  forbid 
Sunday  labor,  but  laws  have  been  enacted  in  nearly  every  juris- 
diction of  the  United  States  restricting  such  labor  to  works  of 
necessity  or  charity.  The  excepted  occupations  may  be  enu- 
merated in  the  statute,'  or  it  may  be  left  to  the  courts  to  decide 
what  occupations  come  within  the  language  of  the  law ;  or  the 
law  may  be  general,  with  specific  designations  of  some  one  or 
more  employments.  Though  laws  of  this  last  class  are  in  a 
sense  discriminatory,  they  have  been  upheld  as  constitutional,^ 
though  not  uniformly.* 

The  operation  of  passenger  trains  and  of  trains  carrying  live 
stock  and  perishable  freight  is  generally  allowed,  though  in  a 

»  People  T.  Grout,  179  N.Y.  417,  72  N.E.  464  ;  City  of  Cleveland  v.  Construc- 
tion Co.,  67  Ohio  St.  197,  65  N.E.  885  ;  City  of  Seattle  v.  Smyth,  22  Wash.  327, 60 
Pac.  1120.  It  may  be  noted  that  after  the  action  of  the  court  of  appeals  of  the 
state,  the  people  of  New  York  amended  their  constitution,  specifically  authoriz- 
ing the  legislature  to  regulate  contracts  of  employment  on  public  work,  in 
accordance  with  which  ch.  506,  Acts  of  1906,  was  enacted.  This  law  has  been 
held  constitutional,  the  court  saying  that  the  people  have  commanded  the  right 
of  freedom  of  contract  to  yield  so  far  as  reasonably  necessary  to  permit  such  regu- 
lation. People  ex  rd.  Williams  Eng.  <fe  Const.  Co.  v.  Metz,  193  N.Y.  148, 86  N.E. 
1070. 

«  Collins  Ice  Cream  Co.  v.  Stephens,  189  111.  200,  59  N.E.  624. 

»  Mass.,  R.L.,  ch.  98,  sec.  3. 

<  Petit  V.  Minnesota,  177  U.S.  164,  20  Sup.  Ct.  666 ;  State  v.  Dolan,  13  Idaho 
693,  92  Pac.  995 ;  People  v.  BcUct,  99  Mich.  151,  57  N.W.  1094. 

'  Armstrong  v.  State,  170  Ind.  188,  84  N.E.  3 ;  State  v.  Granneman,  132  Mo. 
326,  33  S.W.  784  ;  Eden  r.  People,  161  lU.  296,  43  N.E.  1108. 


80  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

number  of  states  the  operation  of  trains  of  any  kind  is  forbidden. 
Where  laws  of  this  sort  exist,  they  are  construed  as  regulations 
of  internal  police,  and  not  of  commerce.^  The  publication  and 
sale  of  newspapers,  the  sale  of  drugs,  tobacco,  milk,  ice,  and 
the  like,  are  also  generally  permitted.  A  common  provision  is 
one  that  exempts  from  the  requirement  of  the  observance  of 
Sunday  as  a  day  of  rest  those  who  observe  another  day.  A  few 
states  have  laws  requiring  the  granting  to  employees  of  a  weekly 
day  of  rest,  that  of  Massachusetts  being  in  effect  a  requirement 
that  workmen  employed  on  Sunday  shall  be  allowed  a  day  of 
rest  within  the  week  following.^  The  law  of  Missouri  ^  applies 
only  to  employees  in  bakeries,  while  that  of  California  is  gen- 
eral.* This  state  has  no  Sunday  law,  strictly  speaking,  such 
laws  having  been  held  by  the  courts  of  the  state  to  be  in  viola- 
tion of  religious  freedom,  as  compelling  the  observance  of  a  day 
held  sacred  by  the  believers  in  one  faith  and  not  by  others.^ 
Though  this  opinion  was  reversed  in  a  later  case,^  the  present 
law  is  one  requiring  a  weekly  day  of  rest,  the  day  not  being 
designated.  Opposed  to  the  view  that  laws  of  this  sort  have  a, 
rehgious  aspect  is  the  one  that  regards  them  as  social  or  eco- 
nomic measures,  and  not  as  compelling  religious  observance.^ 
In  the  Petit  case  it  was  said  that  laws  of  this  class  are  supported 
as  constitutional  by  "well-nigh  innumerable  decisions  of  the  state 
courts,"  as  well  as  by  the  uniform  course  of  the  Supreme  Court. 
The  effect  on  the  employee's  right  to  recover  when  he  is  in- 

»  Hennington  v.  State,  90  Ga.  396,  17  S.E.  1009 ;    affirmed,  163  U.S.  299,  16 
Sup.  Ct.  1086  ;  Norfolk  &  W.R.  Co.  ».  Com.,  93  Va.  749,  24  S.E.  837. 

*  Acts  1907,  ch.  577.  '  R.S.  sec.  10088. 

*  Sim's  Penal  Code,  App.,  p.  722.  '  Ex  parte  Newman,  9  Cal.  502. 
«  Ex  parte  Andrews,  18  Cal.  678. 

'  Petit  V.  Minnesota,  177  U.S.  164,  20  Sup.  Ct.  666  ;  Swann  v.  Swann,  21  Fed. 
299. 


HOURS  OF  LABOR  81 

jured  in  work  being  carried  on  in  violation  of  Sunday  laws  is 
ruled  on  differently  by  different  courts.  Thus  it  has  been  held 
that  labor  on  Sunday  in  violation  of  the  law  is  contributory 
negligence,  so  that  an  employee  could  not  recover  for  injuries 
received  while  so  laboring,  even  though  the  defect  causing  the 
injury  was  due  to  the  employer's  negligence;^  while  the  con- 
trary rule  is  laid  down  elsewhere,  on  the  ground  that  the  em- 
ployee's act  in  laboring  on  Sunday  was  not  more  than  the  remote 
cause  of  the  accident,  the  negligence  of  the  employer  being  the 
proximate  cause.^  Clearly  the  employer  should  not  be  allowed 
to  ask  for  and  receive  the  benefits  of  such  service  and  then  dis- 
claim liability  for  injuries  caused  by  his  own  negligence  during 
its  performance.  It  is  the  law,  however,  that  no  recovery  can 
be  had  for  wages  for  prohibited  labor  on  Sunday,^  and  that  a 
contract  involving  service  on  Sundays  and  other  days  is  an  en- 
tire one,  the  illegality,  so  far  as  the  Sunday  work  is  concerned, 
rendering  the  contract  entirely  void,  so  that  the  employee  can 
recover  nothing  in  an  action  at  law  for  any  of  his  services ;  * 
though  a  subsequent  promise  to  pay  will  support  an  action  for 
the  value  of  the  work  done.^  Of  course  no  action  will  lie  for  a 
breach  of  contract  for  such  labor ;  ®  but  where  payments  have 

»  Read  v.  Boston  &  A.R.  Co.,  140  Mass.  199,  4  N.E.  227  ;  but  see  Newcomb  r. 
Boston  Protective  Dept.,  146  Mass.  596,  16  N.E.  555. 

»  Hoadly  v.  Paper  Co.,  72  Vt.  79,  47  Atl.  169  ;  Railway  Co.  v.  Buck,  116  Ind. 
566,  19  N.E.  453  ;  Solarz  v.  Railway  Co.,  29  N.Y.S.  1123,  8  Misc.  656  ;  Railway 
Co.  V.  Towboat  Co.,  23  Howard  209,  3  U.S.  507  ;  Moran  v.  Dickinson,  204  Mass. 
559,  90  N.E.  1150. 

»  Carson  v.  Calhoun,  101  Me.  456,  64  Atl.  838  ;  Brunnett  v.  Clark,  1  Sheld.  500 
(N.Y.). 

*  Stewart  v.  Thayer,  168  Mass.  519,  47  N.E.  420  ;  Blade  v.  Arnold,  53  Ky.  287 ; 
Williams  v.  Hastings,  59  N.H.  373. 

'  Telfcr  V.  Lambert,  (N.J.L.)  75  Atl.  779. 

*  Bernard  v.  Lilpping,  32  Mo.  341. 

G 


82  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

been  made  for  Sunday  labor,  they  cannot  be  recovered  by  the 
employer  on  the  ground  of  the  invalidity  of  the  contract  for  such 
labor.^ 

The  invalidity  of  a  contract  for  Sunday  labor  will  not  operate 
to  relieve  one  from  the  penalty  for  an  additional  offense  in  con- 
nection therewith,  as  the  employment  of  a  child  in  a  place  where 
intoxicants  are  sold,  such  employment  being  forbidden,  since 
the  service  itself  is  the  evil  to  be  guarded  against,  without  regard 
to  the  means  by  which  the  engagement  was  in  fact  procured.^ 
Where  the  employer  is  entitled  to  the  defense  of  fellow-service, 
the  employee  cannot  overthrow  it  by  showing  that  he  was  at 
work  on  Sunday  in  violation  of  law,  and  therefore  employed 
under  a  void  contract,  and  so  not  an  employee.' 

1  Calkins  v.  Mining  Co.,  5  S.  Dak.  299,  58  N.W.  797. 

«  State  1).  Hall,  141  Wis.  30,  123  N.W.  251. 

» Shannon  v.  Union  R.  Co.,  27  R.I.  475,  63  Atl.  488. 


CHAPTER  IV 

REGULATION    OF    THE    PHYSICAL    CONDITIONS    OF    EMPLOYMENT 

Section  37,  Statutory  Control.  —  The  conditions  surround- 
ing employees  in  their  places  of  employment  are  the  subject  of 
regulation  by  statute  in  most  of  the  states  of  the  Union,  whereby 
the  freedom  of  the  employer  to  carry  on  his  business  in  accord- 
ance with  his  own  ideas  and  plans,  secured  to  him  in  general  by 
the  principles  of  the  common  law,^  is  interfered  with.  The 
principal  groups  of  laws  of  this  class  relate  to  the  conditions  of 
safety  and  sanitation  required  in  factories,  etc.,  the  equipment 
and  operation  of  railways,  mining  operations,  and  the  erection 
and  repair  of  buildings. 

Section  38.  Regulation  of  Factories  and  Workshops.  —  Fac- 
tory regulations  range  from  the  simple  requirement  that  the 
doors  of  workrooms  shall  open  outwardly  as  a  safeguard  in  case 
of  fire,2  provision  for  fire  escapes  being  coupled  therewith  in 
some  cases,'  to  an  elaborate  code  covering  the  guarding  of  dan- 
gerous machinery,'*  the  removal  by  forced  draft  of  dust  and 
injurious  gases,^  the  adequate  provision  of  light*  and  air,^  and 

»  Tuttle  V.  Detroit,  etc.  R.  Co.,  122  U.S.  189,  7  Sup.  Ct.  1166.    See  also  aec.  60. 
«  Miss.,  Code,  sec.  2272. 

»  Ga.,  Pol.  Code,  sec.  2622  ;  S.  Dak..  R.C.,  sees.  3163,  3165. 
*  Kans.,  Acta  1903,  ch.  356  ;  Conn.,  G.S.,  sec.  4516  ;  Ind.,  A.S.,  sec.  7087i,  etc. 
•Iowa,  Code,  sec.  4999c;    N.Y.,  C.L.,  ch.  31,  sec.  86  ;  Mass.,  Acts.  1909,  ch. 
614,  sees.  83,  84.  •  N.Y.,  C.L..  ch.  31,  sec.  81 ;  Conn.,  G.S.,  sec.  4518. 

'  Ind.,  A.S.,  sec.  7087o ;   N.J..  Acts  1904,  ch.  64.  sec.  19. 

83 


84  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

the  supply  of  suitable  water  for  drinking  ^  and  for  humidifying 
the  atmosphere.^  One  state  prohibits  the  taking  of  food  into 
rooms  in  which  poisonous  or  injurious  fumes  or  dusts  are  pres- 
ent,^ Toilet  rooms  and  privies  may  be  required,  their  number 
fixed  in  proportion  to  the  number  and  sex  of  employees,  and 
their  location  and  condition  prescribed.^  Where  the  health  of 
the  general  public  is  directly  involved,  as  in  the  manufacture  of 
bakery  products,^  of  butterine  or  ice  cream,^  or  of  clothing,' 
the  regulations  may  be  even  more  detailed,  as  by  requiring  rooms 
to  be  periodically  lime-washed,  prohibiting  the  use  of  cellars, 
and  the  like. 

Of  like  nature  with  some  of  the  above  laws  are  the  laws  of  a 
few  states  which  have  for  their  object  the  protection  of  agri- 
cultural labor  where  machinery  is  employed,  requiring  safe- 
guards on  horse  powers,*  or  corn  buskers  or  shredders.' 

Section  39.  Steam  Boilers.  —  The  inspection  of  steam  boilers 
is  sometimes  provided  for  in  connection  with  laws  relating  to 
factory  inspection, ^°  but  in  many  states  by^separate  laws.^^  This 
inspection  is  for  the  most  part  confined  to  stationary  boilers  and 
engines,  though  in  a  few  instances  locomotive  boilers  are  in- 
cluded.^2    Marine  engines  and  boilers  are  required  to  be  in- 

»  Mass.,  Acts  1909,  ch.  514,  sec.  78;  R.I.,  Acts  1907,  ch.  1429. 
2  Mass.,  Acts  1908,  ch.  325.  '  111.,  Acts  1909,  p.  202,  sec.  8. 

<  Mass.,  Acts  1909,  ch.  514,  sees.  79-82,  100 ;  Wis.,  A.S.,  sees.  1636-31, 
1636-32. 

*  Cal.,  Acts  1909,  ch.  104  ;  Ind.,  Acts  1909,  ch.  163  ;  Pa.,  B.P.  Dig.,  p.  62. 

« 111.,  Acts  1907,  p.  309. 

1  Md.,  P.G.L.,  Art.  27,  sees.  234-243  ;  N.Y.,  C.L.,  ch.  31,  sees.  100-105. 

8  111.,  A.S.,  ch.  70,  sec.  3  ;  Iowa,  Code,  sec.  5025. 

»  Mich.,  Acts  1907,  ch.  124  ;  Wis.,  A.S.,  sec.  1636-131,  et  seq. 

'o  Pa.,  Acts  1905,  No.  226,  sec.  19. 

"  Conn.,  G.S.,  sees.  4890  et  seq.;  Minn.,  R.L.,  sees.  2168  et  acq. 

"  Mass.,  Acts  1906,  ch.  463,  Pt.  II,  sec.  173  ;  N.Y.,  Con.  L.,  ch.  49,  sec.  72. 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  85 

spected,  not  only  by  state  laws,  but  by  statutes  of  the  United 
States  as  well.^ 

Section  40.  Railways.  —  In  respect  of  the  provisions  as  to 
locomotive  and  marine  boilers,  the  interests  of  the  general  public 
coincide  with  those  of  the  employee  to  support  the  law,  as  is  the 
case  in  the  matter  of  safety  appliances  on  railways  generally, 
which  are  likewise  the  subject  of  both  state  and  federal  legisla- 
tion. These  laws  relate  to  the  use  of  automatic  couplers,^  power 
brakes,^  the  blocking  of  frogs,*  the  installation  of  telltales  or 
warning  strings  at  the  approaches  to  bridges,  tunnels,  etc.,*  the 
height  of  wires,  bridges,  and  other  construction  work  across  the 
tracks  of  railroads,®  the  nearness  of  buildings  and  other  objects 
to  the  tracks,^  the  equipment  of  freight  cars  with  grab  irons, 
ladders  etc.,'  the  use  of  adequate  headlights  on  locomotives,®  the 
employment  of  a  sufficient  crew  for  the  handling  of  trains,^"  the 
adoption  and  enforcement  of  suitable  rules  to  control  the  oper- 
ation of  trains,^^  and  other  matters  conceived  to  add  to  the  safe 
operation  of  the  roads.  Some  states  authorize  the  promulgation 
and  enforcement  of  rules  by  their  state  railway  commissions." 

»  Minn.,  R.L.,  sec.  2173;  Mich.,  Acts  1909.  No.  113  ;  U.S.,  R.S.,  4399  et  seq.. 
and  amending  acts. 

»  U.S.,  27  Stat.  531,  Comp.  Stat.,  p.  1374  ;  Con.  G.S.,  sec.  3762  ;  Mo.,  Acts 
1907,  p.  182. 

»  U.S.,  loc  cit.;  Del.,  Acts  1903,  ch.  394  ;  Ind.,  Acts  1907,  ch.  118. 

«  Colo.,  A.S.,  see.  3751d  ;   Mo.,  Acts  1907,  p.  181 ;   Mich..  C.L.,  sec.  6313. 

» Conn.,  G.S.,  sec.  3731 ;  N.H.,  P.S.,  ch.  159,  sec.  26. 

« Ind..  Acts  1907.  ch.  118 ;  Mich..  C.L..  sec.  6324. 

^  Ind.,  loc.  cit. 

« Ind.,  loc.  cit. ;  111.,  R.S.,  ch.  114,  sec.  226;  Mass.,  Acta  1906,  ch.  463.  Pt.  II. 
sec.  162. 

»  Ark..  Acts  1907,  No.  402  ;  Ga..  Acts  1908,  p.  50  ;  Ohio,  Acts  1910.  p.  330. 

i»  Conn.,  G.S.  sec.  3799  ;  Wis.,  A.S.  sees.  1809r  et  acq. 

»  Ind..  Acts  1907,  ch.  272  ;  Mich.,  C.L.,  sec.  6286.' 

"  Colo.,  Acts  1907,  ch.  208  ;  Vt.,  P.S.,  sec.  4611. 


86  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Street  railway  employees  must  be  protected  from  the  inclem- 
encies of  the  weather  by  the  use  of  inclosed  platforms  for  motor- 
men  in  a  number  of  states/  while  a  few  direct  seats  to  be  fur- 
nished for  their  use.^  Some  also  have  safety  appliance  laws 
appUcable  to  such  roads.^ 

Section  4L  Mine  Regulations.  —  Laws  regulating  the  opera- 
tion of  mines,  providing  for  ventilation,  means  of  exit,  methods 
of  working,  the  setting  and  firing  of  blasts,  the  use  of  safety 
lamps,  and  for  the  general  inspection  and  supervision  of  the 
work  are  found  in  practically  all  states  within  whose  boundaries 
mining  is  carried  on.^  The  Congress  of  the  United  States 
passed  a  law  of  this  class,  applicable  to  mines  in  territories  until 
a  local  law  should  be  passed  satisfactorily  covering  the  ground 
of  the  Federal  law.^  Besides  the  general  provisions  noted  above, 
the  use  of  speaking  tubes  or  other  means  of  communication  may 
be  required;  and  the  guarding  of  hoistways  and  sumps,  the 
supply  and  placing  of  timbers,  the  construction  and  operation 
of  cages  for  miners  and  of  hoists  for  coal,  the  location  and  quan- 
tity of  powder  stored  in  or  about  the  mine,  safeguards  against 
outbursts  of  gas  and  water,  and  many  other  details  may  be 
provided  for  by  the  law. 

Section  42.  Building  Operations.  —  The  dangers  involved 
in  building  operations  are  contemplated  in  the  laws  of  a  number 
of  states,  by  which  the  construction,  testing,  and  barricading  of 
scaffolds,  staging,  etc.,  are  regulated,  floors  required  to  be  filled 
in  or  planked  over  within  designated  distances  as  the  work  of 

»  Conn.,  G.S.,  sees.  3869,  3870  ;  Ind.,  A.S.,  sec.  5479  ;  Iowa,  Acts  1909,  ch.  51. 

*  Conn.,  Acts  1909.  ch.  237  ;  Oreg.,  Acts  1909,  ch.  59. 

»  Cal.,  Pen.  Code,  sec.  369a  ;  N.H.,  Acts  1907,  ch.  113. 

*  Ala.,  Code,  sees.  999-1037  ;  Colo.,  A.S.  sees.  3181-3220  ;  111..  R.S.,  ch.  93  ; 
Ind.,  Acta  1905,  ch.  50  ;  Pa.,  B.P.  Dig.  p.  1340,  et  seq.  »  26  Stat.  1104.    . 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  87 

building  progresses,  or  secondary  scaffolding  required ;  the 
guarding  of  hoistways  or  shafts,  and  provisions  that  hoists, 
cranes,  and  other  mechanical  contrivances  shall  be  so  constructed 
and  operated  as  to  protect  the  life  and  limbs  of  employees  may 
also  be  included.^  The  conditions  of  employment  in  compressed 
air  are  set  forth  with  considerable  particularity  in  a  law  ^  which 
requires  decompression  locks  and  medical  and  toilet  rooms  to  be 
provided. 

Section  43.  Accidents.  —  Appliances  for  rendering  medical 
and  surgical  aid,  as  bandages,  plasters,  absorbent  cotton,  oil, 
stretchers,  blankets,  etc.,  are  to  be  provided  for  the  care  of  in- 
jured employees  in  factories  and  mines,  according  to  the  enact- 
ments of  several  legislatures.' 

Reports  of  accidents  occurring  in  mines  and  factories,  some- 
times extending  to  all  places  of  employment,*  are  required  by 
the  laws  of  some  states  to  be  made  to  either  an  inspector  or  some 
other  official.  Special  laws  are  found  in  some  states  with  ref- 
erence to  reporting  accidents  on  railroads.*  Many  of  these 
laws  contain  provisions  for  the  investigation  of  the  cause  of  the 
accident  and  the  determination  of  the  responsibility  therefor.' 
Such  statutes  have  a  close  relation  to  the  liability  of  the  em- 
ployer for  injuries  to  his  employees,  as  well  as  to  the  matter  of 
improving  the  conditions  surrounding  employees  in  their  places 

1  Conn.,  Acts  1907,  ch.  152  ;  Ohio,  Gen.  Code,  sees.  12576,  12577.  12593 
12594;  Wis.,  A.S.,  sees.  1636-81  etseq.;     111..  Acts  1907,  p.  312. 

»N.Y.,  Acts  1909,  ch.  291. 

»  Mass.,  Acts  1909,  ch.  514,  sec.  104  ;  Mich.,  Acts  1907,  ch.  152,  sec.  6 ;  111., 
R.S..  ch.  93,  sec.  30  ;  Ind..  Acts  1905.  ch.  50.  sec.  13  ;  Ohio,  Gen.  Code,  sec.  925. 

*  111.,  Acts  1907.  p.  308  ;  Ind.,  A.S..  sec.  7087h  ;   Mo..  R.S..  sec.  6432. 

«  Ala.,  Code,  sec.  5666  ;  Minn.,  Acts  1907.  ch.  290  ;  Ohio,  Gen.  Code.  sec.  573. 

•Ind..  A.S..  sec.  7087h ;  Tenn..  Code.  sec.  335;  Minn..  Acts  1907,  ch.  290; 
Pa.,  B.P.  Dig.,  p.  1356,  sees.  190-203 ;  U.S.,  31  Stat.  1446.  C.S..  p.  3176. 


88  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

of  work.  Some  of  them  direct  the  inspector  to  take  steps  to 
prevent  the  recurrence  of  Hke  accidents,  and  to  promote  the 
safety  or  convenience  of  the  public  or  of  employees  by  requiring 
proper  repairs  and  improvements  to  be  made.' 

Mere  pubHcity  is  apparently  largely  relied  upon  as  a  means  of 
securing  the  changes  necessary  to  remedy  the  defective  condi- 
tions, if  any,  which  are  found  to  be  the  cause  of  the  accident. 
This  may  be  obtained  either  by  publication,^  or  by  means  of 
reports  to  the  legislature  or  the  governor  of  the  state,^  or  by 
records  kept  in  the  books  of  a  state  commission.^  In  other 
cases  it  is  provided  that  the  facts  disclosed  and  the  names  of 
witnesses  shall  be  communicated  to  the  persons  injured  or  to  the 
friends  of  those  killed  as  the  result  of  the  accident,  which  looks 
clearly  toward  facilitating  the  recovery  of  damages ;  ^  or  the 
law  may  provide  for  reports  of  neglect  of  duty  to  be  sent  to  the 
prosecuting  officers  of  the  state.®  The  opposite  view  is  taken  in 
states  in  whose  law  on  this  subject  it  is  expressly  provided  that 
the  facts  obtained  in  any  such  report  or  investigation  shall  not 
be  used  at  any  trial  of  suits  for  damages,^  or  in  any  criminal 
proceeding  on  account  of  such  accident.^ 

Section  44.  Construction  and  Interpretation  of  Safety  Stat- 
utes. —  The  basis  of  these  provisions  of  law,  which  it  is  impos- 

1  In  mines :  Kans.,  G.S.,  sec.  4138  ;  Minn.,  Acts  1905,  ch.  166  ;  Tenn.,  Code, 
sec.  335.  On  railroads :  Miss.,  Code,  sec.  4870 ;  Minn.,  Acts  1907,  ch.  290 ; 
Vt..  P.S.,  sec.  4611 ;  N.Y.,  Con.  L.,  ch.  48,  sec.  47. 

*  Ind.,  Acts  1907,  ch.  241 ;  Vt.,  P.S.,  sec.  4609. 

»  Minn.,  Acts  1907,  ch.  290 ;  Wash.,  Acts  1907,  ch.  226. 

*  Ala.,  Code,  sec.  5666  ;  Ky.,  Stat.,  sec.  777 ;  Mich.,  Acts  1907,  No.  312. 
0  Conn.,  G.S.,  sec.  3800. 

« Ind.,  Acts  1907,  ch.  272 ;  Vt.,  P.S.,  sec.  4609. 

"I  Ind.,  Acts  1907,  ch.  241  f  Iowa,  Acts  1907,  ch.  110  ;  Mont.,  Acts  1907,  ch.  37, 
sec.  18 ;  N.Y.,  Con.  L.,  ch.  48,  sec.  47 ;  U.S.,  31  Stat.  1446,  Comp.  St.  p.  3176. 

*  Iowa,  loc.  eit. ;  Mont.,  loc.  cit. 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  89 

sible  to  more  than  sketch  briefly,  and  which  are  being  changed 
and  extended  constantly,  is  the  police  power  of  the  state,  exer- 
cised, in  most  instances,  in  behalf  of  the  welfare  of  its  citizens  who 
are  employed,  though  in  some  cases  the  public  welfare  in  its 
broader  sense  is  obviously  concerned.  They  carry  out  and  are 
supported  by  the  doctrine  laid  down  by  the  Supreme  Court  in 
the  following  language  :  "  It  is  a  principle  fully  recognized  by  de- 
cisions of  the  state  and  federal  courts,  that  wherever  there  is  any 
business  in  which,  either  from  the  products  created  or  the  in- 
strumentalities used,  there  is  danger  to  life  or  property,  it  is  not 
only  within  the  power  of  the  states,  but  it  is  among  their  plain 
duties,  to  make  provision  against  accidents  likely  to  follow  in 
such  business,  so  that  the  dangers  attending  it  may  be  guarded 
against  so  far  as  is  practicable."  ^  Nor  is  it  an  objection  to  the 
constitutionality  of  such  laws  that  they  give  grounds  for  actions 
which  would  be  without  foundation  at  common  law,  since  it  is 
within  the  power  of  the  state  to  change  and  modify  the  prin- 
ciples of  the  common  law  customarily  applicable  to  the  relations 
of  employer  and  employee  in  accordance  with  the  conception  of 
public  policy  adopted  by  the  legislature  in  view  of  existing  con- 
ditions.2 

Of  a  factory  inspection  law  it  was  said  that  it  was  a  police 
regulation  for  the  protection  of  the  lives,  health,  and  morals  of 
the  employees  in  factories,  and  clearly  within  the  power  of  the 
legislature  to  enact,  so  that  there  could  be  no  doubt  of  its  con- 
stitutionality and  vaHdity ; '  while  regulations  applying  to 
bakeries  have  regard  to  the  public  health,  and  are  within  the 

»  Nashville,  C.  &  St.  L.  Ry.  v.  Alabama.  128  U.S.  96,  9  Sup.  Ct.  28. 
»  WilminKton  Star  Min.  Co.  v.  Fulton,  205  U.S.  60.  27  Sup.  Ct.  412. 
«  State  V.  Vickens.  186  Mo.  10.3,  84  S.W.  908  ;  State  p.  Hyman,  98  Md.  596,  67 
A.tl.  6  ;  Anns  c.  Aycr,  192  111.  GOl,  61  N.E.  851. 


90  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

legislative  power  on  this  account.^  Mine  regulations  are  clearly 
within  the  reasons  of  the  laws  affecting  factory  labor.^  Since, 
however,  mine  labor  is  known  to  be  especially  dangerous  and 
exhausting,  laws  looking  to  the  safety  of  miners  may  be  sup- 
ported as  valid  on  the  ground  that  the  hazards  of  the  employ- 
ment justify  a  special  classification,^  bringing  such  laws  within 
the  rules  laid  down  in  the  matter  of  legislation  affecting  railway 
employment.^  Of  these  laws,  as  of  the  federal  safety  appliance 
laws,  the  Supreme  Court  has  said  ^  that  they  do  not  give  the 
mine  owner  the  privilege  of  reasoning  on  the  sufficiency  of  ap- 
pliances or  on  the  conditions  involving  reasonable  safety,  but 
they  fix  a  standard  the  maintenance  of  which  becomes  the  em- 
ployer's imperative  duty,  from  which  he  cannot  be  excused 
because  some  workman  may  disregard  instructions.  An  em- 
ployer will  not  be  allowed  to  allege  impracticability  as  an  excuse 
for  failing  to  comply  with  the  law,  since  to  do  so  "would  be  the 
abrogation  rather  than  the  construction  of  the  statute."  ® 

As  to  other  laws  mentioned  above  as  belonging  to  this  class, 
there  is  little  to  be  gained  by  added  discussion.  Laws  for  the 
protection  of  employees  on  street  railways,  requiring  the  pro- 
vision of  screens  or  inclosed  vestibules,  are  constitutional,^  as 
are  those  enacted  to  secure  the  safety  of  employees  on  buildings, 

1  Benz  r.  Kremer,  142  Wis.  1.  125  N.W.  99. 

»  Chicago,  W.  &  V.  Coal  Co.  v.  People,  181  111.  270,  54  N.E.  961 ;  St.  Louis 
Consol.  Coal  Co.  v.  Illinois,  185  U.S.  203,  22  Sup.  Ct.  616 ;  Sommer  v.  Coal  Co., 
89  Fed.  54. 

« Holden  v.  Hardy,  169  U.S.  366,  18  Sup.  Ct.  383 ;  Smith  v.  Woolf,  160  Ala. 
644,  49  So.  395. 

«  Missouri  P.  R.  Co.  v.  Mackey,  127  U.S.  205,  8  Sup.  Ct.  1161.     See  sec.  90. 

•  Deserant  v.  Cerillos  Coal  R.R.  Co.,  178  U.S.  409,  20  Sup.  Ct.  967. 

•  Morris  Coal  Co.  v.  Donley,  73  Ohio  St.  298,  76  N.E.  945. 
»  State  V.  Whitaker,  160  Mo.  59,  60  S.W.  1068. 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  91 

being  within  the  reasons  of  the  laws  of  this  class  generally.^ 
They  are  also  subject  to  the  construction  of  law  that  permits  the 
employee  to  lose  the  benefit  of  their  intention  in  those  jurisdic- 
tions that  permit  the  employee  to  assume  the  risk  of  his  em- 
ployer's failure  to  conform  to  the  provisions  of  the  statute,' 
or  that  declares  that  an  employee  continuing  to  work  under 
conditions  of  such  failure  bars  his  right  to  recovery  for  resultant 
injuries  because  of  his  act  in  so  continuing,  by  which  he  assumes 
the  risks  and  may  also  be  guilty  of  contributory  negligence,'  — 
rulings  that  confirm  the  importance  of  a  clear  statutory  declara- 
tion of  the  legislative  intent  in  the  enactment  of  laws  of  this 
class,  since  otherwise  the  ordinary  citizen  is  unable  to  determine 
what  are  his  rights  under  laws  enacted  apparently  for  his  bene- 
fit, but  seemingly  capable  of  being  ignored  with  impunity. 

With  regard  to  railways,  the  question  arises  as  to  the  control 
of  interstate  commerce  by  Congress;  but  unless  the  field  is  so 
covered  as  to  exclude  state  control,  matters  of  intrastate  con- 
cern may  be  regulated  by  state  laws  if  they  do  not  interfere  with 
existing  federal  statutes."*  On  this  view  the  full  crew  laws  ^ 
have  been  held  valid.^  State  laws  regulating  the  use  of  auto- 
matic couplers,  etc.,  also  come  within  this  rule ; '  as  do  laws 

•  Stewart  v.  Ferguson,  34  App.  Div.  515  (N.Y.)  ;  Marshall  r.  Norcross, 
191  Mass.  568,  77  N.E.  1151. 

»  O'Maley  v.  South  Boston  Gaslight  Co.,  168  Mass.  135,  32  N.E.  1119. 
'  Stewart  v.  Ferguson,  supra. 

<  Smith  V.  Alabama,  124  U.S.  465,  8  Sup.  Ct.  564  ;  Missouri  P.  R.  Co.  r.  Flour 
Mills,  211  U.S.  612,  29  Sup.  Ct.  214. 

'  Ind.,  Acts  1907,  eh.  11 ;  Ark.,  Acts  1907,  No.  116. 

•  Pittsburg,  etc.,  R.  Co.  v.  State.  172  Ind.  147,  87  N.E.  1034  ;  Chicago,  R.I.  <k 
P.  R.  Co.  r.  State,  86  Ark.  412,  111  S.W.  456,  affirmed,  219  U.S.  453,  31  Sup. 
Ct.  275. 

'  Detroit,  etc.,  R.  Co.  r.  State,  82  Ohio  St.  60,  91  N.E.  869 ;  Larabec  r.  New 
York,  etc.,  R.  Co.,  182  Mass.  348.  66  N.E.  1032. 


92  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

requiring  telltales  or  warning  strings  over  tracks  at  the  approach 
to  bridges  or  tunnels,'  fixing  standards  for  headlights  on  loco- 
motives,* and  similar  legislation. 

Section  45.  Enforcement.  —  In  many  of  the  states  having 
laws  of  this  class  provision  is  made  for  their  enforcement  by 
means  of  special  ofl&cials  or  inspectors,  as  labor  bureaus,  factory 
inspection  offices,  and  mine  bureaus ;  while  in  others  this  duty 
devolves  on  such  officers  as  are  charged  with  the  enforcement  of 
the  laws  generally.  It  need  hardly  be  added  that  in  states  of 
the  latter  class  the  laws  are  usually  inefficiently  enforced.  The 
laws  of  the  various  states  differ  in  their  nature,  some  being  ab- 
solute and  mandatory  in  form,  directing  certain  provisions  to  be 
made  under  prescribed  conditions,  while  others  commit  large 
discretion  to  the  inspecting  and  enforcing  officers.  The  latter 
laws  are  open  to  criticism  as  offering  opportunity  for  a  variety 
of  standards  as  the  judgment  and  disposition  of  the  enforcing 
officials  vary.  A  law  that  provided  that  if  it  appeared  to  the 
enforcing  officer  that  injurious  conditions  could,  to  a  great  ex- 
tent, be  prevented  by  the  use  of  some  mechanical  contrivance, 
he  should  direct  that  such  contrivance  be  installed,^  was  de- 
clared void  on  the  ground  that  it  imposed  on  the  inspector,  not 
the  duty  of  enforcing  a  law  of  the  legislature,  but  the  power  of 
making  a  law  for  an  individual,  and  enforcing  such  rules  of 
conduct  as  he  might  prescribe,  which  was  an  unconstitutional 
delegation  of  legislative  power.* 

» Va.,  Code,  sec.  1294-d ;  Chesapeake  &  O.  R.  Co.  v.  Rowsey'e  Adm'r.,  108 
Va.  632,  62  S.E.  363. 

«  St.  Louis,  I.  M.  &  S.  R,  Co.  t>.  White,  93  Ark.  368,  125  S.W.  120  ;  Atlantic 
C.  L.  R.  Co.  V.  State.  (Ga.)  69  S.E.  725. 

»  Cal.,  Act  of  Feb.  6,  1889. 

*  Schaezlein  v.  Cabaniss,  135  Cal.  466,  67  Pac.  755. 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  93 

At  what  point  the  line  would  be  generally  drawn  by  the  courts 
is  not  clear,  since  much  of  the  detail  must  of  necessity  be  left  to 
the  judgment  and  integrity  of  the  enforcing  officers;  and  such 
expressions  are  quite  common  as  "in  the  discretion  of  the  chief 
inspector,"  ^  "as  the  factory  inspector  may  direct,"  *  "the  in- 
spector shall  direct  the  proper  drainage,"  '  "if  it  appears  to  the 
inspector  that  such  [injurious]  inhalation  would  be  substantially 
diminished  "  ;  *  and  to  attempt  to  eliminate  discretion  entirely 
is  obviously  impossible.^ 

Section  46.  Disobedience  of  Laws.  —  The  power  of  the  state 
to  enact  inspection  or  safety  appliance  laws  of  the  above  classes 
is  not  questioned  as  a  general  proposition,*  and  the  failure  of  an 
employer  to  comply  therewith  has  been  held  to  be  negligence 
per  se  in  cases  where  injury  befalls  an  employee  by  reason  of  such 
failure ;  ^  nor  does  the  employee,  in  such  a  view  of  the  law, 
assume  the  risks  occasioned  thereby.^  In  other  courts  such 
failure  is  classed  only  as  evidence  of  negligence,'  in  which  view 
the  question  of  assumption  of  risks  can  be  raised.^"    The  statute 

>  Ind..  A.S.,  sec.  7087i.  «  Conn.,  Acta  1905,  ch.  13. 

« III.,  Acts  1907,  p.  309.  *  Mass.,  Acts  1909,  ch.  514,  sec.  84. 

•Arms  V.  Ayer,  192  111.  601,  61  N.E.  851 ;  St.  Louis  Consol.  Coal  Co.  v.  Illi- 
nois, 185  U.S.  203,  22  Sup.  Ct.  616. 

•City  of  New  York  c.  Miln,  36  U.S.  71,  11  Pet.  102;  People  v.  Smith.  108 
Mich.  527,  66  N.W.  382 ;  State  r.  Vickens,  186  Mo.  103,  84  S.W.  908 ;  State  v. 
Hyman,  98  Md.  596,  57  Atl.  6. 

'  Kiatt  V.  Lumber  Co.,  97  Wis.  641,  73  N.W.  563 ;  Evansville  Hoop  &  Stave 
Co.  V.  Bailey,  43  Ind.  App.  153,  84  N.E.  549. 

•  U.S.  Cement  Co.  v.  Cooper,  82  N.E.  981  (Ind.  App.) ;  Narramore  r.  R.  Co., 
96  Fed.  298  ;  Western  Furniture  Co.  v.  Bloom,  76  Kans.  127,  90  Pac.  821. 

•  Pitcher  v.  N.Y.,  etc.,  R.  Co.,  127  N.Y.  678,  28  N.E.  136 ;  Jupiter  Coal  Mia. 
Co.  r   Mercer,  84  111.  App.  96. 

»  Knisley  v.  Pratt,  148  N.Y.  377,  42  N.E.  986  ;  O'.Maioy  r.  South  Boston  Gas 
Light  Co.,  158  Mass.  135.  32  N.E.  1119 ;  Denver  &  Rio  Grande  R.  Co.  c.  Gannon, 
40  Colo.  195,  90  Pac.  853 ;  Same  v.  Norgate,  141  Fed.  247. 


94  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

may  declare  failure  to  comply  with  the  law  prima  facie  evidence 
of  negligence,  or  that  the  employee  assumes  only  the  risks  that 
remain  after  the  employer  has  complied  with  the  laws  calling 
for  safety  appliances.^ 

The  better  reason  seems  to  be  with  the  view  that  disobedience 
causing  injury  is  negligence,  since  to  permit  the  employee  to 
assume  the  risks  of  his  employer's  non-compliance  with  the 
statute  is  practically  to  allow  him  to  enter  into  a  contract  of 
waiver  both  as  to  the  provisions  of  the  law  and  as  to  his  rights 
thereunder,  which  amounts  to  allowing  the  employer  and  em- 
ployee to  determine  what  is  public  policy,  disregarding  the 
legislative  determination  embodied  in  the  law.^  The  right  so 
to  do  is  indeed  maintained  in  a  case  in  which  it  was  held  that  if 
the  proprietor,  although  failing  to  provide  the  statutory  instal- 
lation, had  yet  provided  one  equally  safe  and  convenient,  he  had 
performed  his  duty  under  the  statute.'  The  Supreme  Court 
enounces  a  contrary  rule  in  a  case  involving  this  principle,  hold- 
ing that  no  one  can  urge  against  a  system  or  method  fixed  by 
statute  one  of  his  own  adoption  and  challenge  a  comparison 
between  them  without  virtually  denying  the  police  power  of  the 
state  in  this  behalf.^ 

The  argument  to  the  contrary  is  that  a  rule  under  which  it  is 
not  possible  for  the  employee  to  waive  the  protection  of  the 
statute  and  assume  the  risks  of  his  employer's  known  failure  to 
comply  with  its  provisions  establishes  a  liability  unknowTi  to  the 
common  law.  "There  is  no  rule  of  public  policy  which  pre- 
vents an  employee  from  deciding  whether,  in  view  of  increased 

*  Colo..  A.S..  sec.  3751e ;  N.Y..  Con.  L.,  ch.  31,  sec.  202. 

*  Narramore  v.  R.  Co.,  supra. 

»  Gorman  v.  McArdle.  51  N.Y.  St.  248,  22  N.Y.  Supp.  479. 

*  District  of  Columbia  v.  Brooke,  214  U.S.  138,  29  Sup.  Ct.  560. 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  95 

wages,  the  difficulties  of  obtaining  employment,  or  other  suffi- 
cient reasons,  it  may  not  be  wise  and  prudent  to  accept  employ- 
ment subject  to  the  rule  of  obvious  risks.  The  statute  does, 
indeed,  contemplate  the  protection  of  a  certain  class  of  laborers, 
but  it  does  not  deprive  them  of  their  free  agency  and  the  right 
to  manage  their  own  affairs."  ^ 

The  law,  however,  contemplates  this  protection  by  way  of 
prescribed  methods  and  instrumentalities,  with  reference  to  the 
use  of  which  the  discretion  of  the  employer  is  eliminated,  in 
order  that  the  statutory  standard  may  be  maintained  in  all 
establishments  alike ;  and  it  is  difficult  to  reconcile  the  assump- 
tion of  risks  in  cases  of  violation  of  the  statute  with  that  rule  of 
law  that  condemns  waivers  of  the  employer's  liability  in  advance 
of  the  receipt  of  the  injury.^  Nor  is  it  clear  how  a  view  that 
insists  that  assumption  of  risks  is  a  matter  of  law,  imposed  on 
the  employee  "regardless  of  the  desires  of  the  master  or  the 
servant,"  ^  is  supported  by  an  argument  that  adduces  the  prin- 
ciples of  "free  agency  and  the  right  to  manage  their  own  af- 
fairs." *  No  fact  is  more  frequently  reiterated,  moreover,  in 
any  review  of  labor  legislation  than  that  it  is  no  longer  the  in- 
tention of  the  state  to  leave  employer  and  employee  to  the 
untrammeled  exercise  of  their  free  agency,  so-called,  but  that 

'  Knisley  v.  Pratt,  supra.  See,  however,  a  recent  opinion  by  the  same  court 
(Rhodes  v.  Spcrry,  etc.,  Co.,  193  N.Y.  223,  85  N.E.  1097),  in  which  it  was  said 
that  the  fact  that  a  law  created  a  liability  unknown  to  the  common  law  was  no 
objection  to  its  constitutionality,  as  the  legislative  power  was  not  so  limited. 
The  plea  of  assumption  of  risks  is  now  abolished  in  New  York,  where  the  injury 
resulted  from  the  employer's  failure  to  comply  with  safety  statutes.  C.L.,  ch. 
31,  sec.  202.  See  Persons  v.  Bush  Terminal  Co.,  125  N.Y.  S.  277,  68  Misc.  Rep. 
673.  « Sec.  73. 

»  Denver  &  R.G.R.  Co.  v.  Norgate,  supra. 

*  Knisley  v.  Pratt,  supra. 


96  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

its  bounds  are  to  be  fixed  for  the  sake  of  the  general  welfare  of 
the  whole  people.^ 

;  Statutes  are  not  wanting  that  formally  enlarge  the  liability  at 
common  law  by  abrogating  the  defense  of  assumed  risks  ^  or  of 
contributory  negligence,'  or  both,  as  in  some  of  the  laws  cited, 
where  the  employer  ignores  the  law  as  to  safety  appliances ;  and 
under  the  view  that  assumption  of  risks  is  a  matter  of  contract, 
it  would  appear  that  the  laws  prohibiting  contracts  of  waiver 
of  the  provisions  of  statutes  must  necessarily  be  construed  as 
barring  this  defense ;  so  also  of  laws  that  give  to  an  employee 
injured  by  reason  of  the  failure  of  the  employer  to  conform  to  the 
requirements  of  the  statute  the  same  rights  of  recovery  as  if  he 
were  not  an  employee,^  since  it  is  only  of  an  employee  that  it 
could  be  said  under  any  circumstances  that  he  assumed  the 
risks  of  another's  undertaking.  A  well  known  text  writer  has 
said :  — 

"When  the  legislature  of  a  state  or  the  council  of  a  municipal 
corporation,  having  in  view  the  promotion  of  the  welfare  or  the 
safety  of  the  public  or  of  individual  members  of  the  public, 
commands  or  forbids  the  doing  of  a  particular  act,  the  general 
conception  of  the  courts,  and  the  only  one  that  is  reconcilable 
with  reason,  is  that  a  failure  to  do  the  act  commanded,  or  doing 
the  act  prohibited,  is  negligence  as  mere  matter  of  law,  otherwise 
called  negligence  per  se,  and  this  irrespective  of  all  questions  of 
the  exercise  of  prudence,  diligence,  care,  or  skill,  so  that  if  it  is  the 

'  See  "Police  power,"  sec.  6. 

« 111.,  Acts  1905,  p.  350,  sec.  9 ;  Ind.,  A.S.,  sec.  5173c,  Acts  1907,  chs.  118,  131 ; 
Iowa,  Code,  sec.  2083,  Acts  1907,  ch.  181 ;  Mass.,  R.L.,  ch.  Ill,  sec.  209;  U.S., 
27  Stat.  531,  Comp.  St.  p.  3174. 

»  Miss.,  Code,  sec.  4051 ;  Mo.,  Acts  1907,  p.  181 ;  Ohio,  Gen.  Code,  sees. 
8945,  8955. 

*  Mass.,  Acts  1909,  ch.  514,  sec.  127 ;  Miss.,  Const.,  Art.  7,  sec.  193. 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  97 

proximate  cause  of  hurt  or  damage  to  another,  and  if  that  other 
is  without  contributory  fault,  the  case  is  decided  in  his  favor."  ' 

There  is,  however,  a  strong  hst  of  cases  on  the  other  side  of 
this  question,  holding  that  the  employee  may  assume  the  risks 
of  such  disobedience  of  the  law  by  his  employer.  ^ 

A  statute  prescribing  certain  protective  arrangements  and 
abrogating  the  defense  of  contributory    negligence,   imposing 

'  1  Thompson  Neg.  sec.  10.  For  an  extended  and  interesting  discussion  of 
these  points  see  Caspar  v.  Lewin,  82  Kans.  604,  109  Pac.  657. 

»  Denver  &  R.G.R.  Co.  v.  Gannon,  40  Colo.  195,  90  Pac.  853,  and  cases  cited ; 
2  Labatt  M.  <fe  S.,  sec.  650,  21  A.  &  E.  Enc.  Law,  478  ;  6  L.R.A.  (N.S.)  981.  The 
importance  of  clear  legislative  declaration  as  to  the  intent  of  the  law  is  empha- 
sized by  a  comparison  of  the  citations  found  in  the  above  sources,  with  which 
may  be  taken  those  given  in  Western  Furniture  &  Mfg.  Co.  v.  Bloom,  76  Kans. 
127,  90  Pac.  821.  The  situation  in  a  state  without  such  a  declaration  is  set  forth 
in  Minnesota,  whose  law  (R.L.  sec.  1813)  directs  dangerous  machinery  and  appli- 
ances to  be  fenced  or  otherwise  protected  "as  far  as  practicable."  In  constru- 
ing the  law  the  supreme  court  of  the  state  held  that  on  a  showing  that  a  guard  is 
practicable,  its  omission  constitutes  negligence  (Callopy  v.  Atwood,  105  Minn. 
80,  117  N.W.  238),  described  in  Swenson  v.  Osgood  &  Blodgett  Co.  (91  Minn. 
509,  98  N.W.  645)  as  negligence  per  se.  The  duty  of  proving  practicability  de- 
volves on  the  plaintiff.  (Glockner  v.  Hardwood  Mfg.  Co.,  109  Minn.  30,  122 
N.W.  465.)  In  another  case  it  was  stated  that  the  statute  was  merely  declara- 
tory of  the  common  law.  (Bredeson  v.  Lumber  Co.,  91  Minn.  317,  97  N.W.  977.) 
This  view  was  said  in  a  later  case  to  be  obiter,  and  that  the  statute  did  in  fact 
change  the  common  law  so  as  to  make  it  negligence  in  law  or  per  se  not  to  guard 
dangerous  machinery  where  it  was  practicable  to  guard  it,  though  the  defenses 
of  assumed  risks  and  contributory  negligence  remain  as  at  common  law  (David- 
son V.  Flour  City  Works,  107  Minn.  17,  119  N.W.  483;  Glockner  r.  Hardwood 
Mfg.  Co.,  109  Minn.  30, 123  N.W.  807),  and  the  plaintiff  was  denied  recovery  in  a 
case  in  which  it  was  held  that  he  was  guilty  of  contributory  negligence  in  using 
an  unguarded  saw  which  it  was  practicable  to  guard.  (Parker  v.  Lumber  Co., 
85  Minn.  13.  88  N.W.  261.)  It  is  said,  however,  that  it  is  only  where  reasonable 
minds  could  clearly  draw  but  one  conclusion  from  the  undisputed  evidence  that 
the  question  of  assumption  of  risks  should  be  decided  by  the  court ;  and  the 
mere  fact  that  a  workman  knew  that  a  dangerous  machine  was  not  guarded 
was  not  sufficient  to  take  the  case  from  the  jury  on  this  point.  (Shaver  r. 
Lumber  Co.,  109  Minn.  376,  123  N.W.  1076.) 
H 


98  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

an  absolute  liability  for  injuries  resulting  from  non-compliance 
with  its  provisions  ^  has  been  declared  constitutional ;  ^  so  also 
of  one  that  modifies  the  defense  by  providing  for  the  determina- 
tion of  degrees  of  negligence,  introducing  the  doctrine  of  com- 
parative negligence.^ 

Section  47.  Sufficient  Compliance.  —  While  an  inspector's 
certificate  of  approval  of  installations  and  appliances  may  be 
admitted  as  prima  facie  evidence  of  compliance  with  the  statute, 
it  is  not  conclusive,  and  an  injured  employee  may  overthrow 
the  presumption  raised  thereby  by  means  of  suitable  proof.^ 
In  the  construction  of  the  federal  statute  relative  to  railroad 
equipment  and  maintenance,  the  Supreme  Court  has  enforced 
a  rule  of  strict  compliance.  Thus  it  is  not  sufficient  that  coup- 
lers used  in  a  train  shall  couple  automatically  when  used  with 
others  of  the  same  make,  but  they  must  couple  automatically 
with  those  in  use  in  the  train  as  actually  constituted.^  Fur- 
thermore, the  height  fixed  for  drawbars  must  be  maintained 
at  the  employer's  own  hazard,  the  duty  being  an  absolute  one, 
and  not  being  capable  of  discharge  by  the  use  merely  of  reason- 
able care,  or  by  its  delegation  to  competent  persons  to  whom  the 
necessary  supplies  are  furnished.  The  legislature  having  pre- 
scribed conditions  of  appliances,  the  employer's  discretion  no 
longer  controls,  and  nothing  less  than  the  legislative  require- 

iWis.,  A.S.,  sec.  1810. 

s  Quackenbush  v.  R.  Co.,  62  Wis.  411,  22  N.W.  174. 

»  Nebr.,  Acts  1907.  ch.  48  ;  Missouri  P.  R.  Co.  v.  Castle,  172  Fed.  841  (C.C.A.). 
See  further,  sec.  77. 

*  Vosberg  v.  Lumber  Co.,  45  Wash.  670,  89  Pac.  168.  See  per  contra,  Pauley  v. 
Steam  Gauge  &  Lantern  Co.,  131  N.Y.  90,  29  N.E.  999,  in  which  the  inspector's 
certificate  was  held  to  relieve  the  employer,  though  the  instrumentality  (a  fire 
escape)  did  not  conform  to  the  law,  and  was  accessible  only  with  great  effort  and 
risk.  '  Johnson  v.  Southern  P.  R.  Co.,  196  U.S.  1,  25  Sup.  Ct.  58. 


PHYSICAL  CONDITIONS  OF  EMPLOYMENT  99 

ments  will  be  regarded  as  reasonable  care  in  the  circumstances.^ 
It  is  not  enough  to  have  proceeded  in  the  direction  of  a 
compliance,  as  by  providing  an  inadequate  light  when  the 
statute  requires  one  that  will  distinctly  disclose  the  surround- 
ings.^ And  it  has  been  held  that  it  is  not  permitted  to  plead 
good  faith  where  an  inspection  has  actually  been  made  by  proper 
persons,  whose  judgment  was  that  a  working  place  did  not 
require  marking  as  dangerous,  though  subsequent  events  showed 
that  it  was  in  fact  dangerous.^  The  employer  is  Uable  in  such 
case  as  for  a  willful  violation  of  the  law,  since  whether  or  not  an 
adequate  inspection  has  been  made  is  not  within  the  province 
of  the  employer  to  decide,  but  is  a  question  for  the  jury. 

Section  48.  Sale  of  Liquor  to  Employees.  —  As  detrimental  to 
the  interests  of  the  parties  to  a  labor  contract,  the  establishment 
of  saloons  or  other  places  for  the  sale  of  intoxicants  at  or  near 
construction  camps  is  prohibited  in  one  state ;  ^  and  this  law 
has  been  held  to  be  a  reasonable  exercise  of  the  police  power  of 
the  state  in  view  of  the  mischief  likely  to  follow  the  activities  of 
itinerant  vendors  of  intoxicants.^  Other  statutes  authorize 
employers  to  forbid  the  sale  of  intoxicants  to  designated  em- 
ployees,^ or  prohibit  the  use  of  intoxicants  on  any  engine,  car, 
or  train  propelled  by  steam  or  electricity,  except  in  a  buffet  or 
dining  car ;  ^  or  forbid  the  bringing  of  intoxicants  into  any  mine, 
smelter,  machine  shop,  or  sawmill.^ 

>  St.  Louis,  L  M.  &  S.  R.  Co.  v.  Taylor,  210  U.S.  281,  28  Sup.  Ct.  610. 
»  Eldorado  Coal  &  Coke  Co.  v.  Swan,  227  III.  586,  81  N.E.  691. 
«  Aetitus  V.  Coal  Co.,  246  111.  32,  92  N.E.  579. 

♦  Cal.,  Acts  1909,  ch.  413.  '  Ex  parte  King,  157  Cal.  161,  106  Pac.  578. 

«  Minn.,  Acts  1909,  ch.  198  ;  Mass.,  R.L.,  ch.  100,  sec.  63  ;  Ohio,  Gen.  Code, 
sec.  6203 ;  S.  Dak.,  Acts  1903,  ch.  165. 

"I  Ohio,  Gcu.  Code,  sec.  13,196.  «  Wyo.,  Acta  1909,  ch.  32. 


CHAPTER  V 

EMPLOYMENT   OF  WOMEN   AND   CHILDREN 

Section  49.  Special  Regulations.  —  It  is  an  incident  of 
modern  industry  that  a  special  body  of  laws  has  been  formulated 
relating  to  the  employment  of  women  and  children.  The 
common  law  left  them  or  those  who  had  them  under  legal  con- 
trol to  make  such  contracts  of  employment  as  they  saw  fit,  or 
rather,  perhaps,  as  they  were  constrained  to  make  from  the 
force  of  circumstances.  At  the  present  time,  in  nearly  every 
jurisdiction  are  to  be  found  laws  fixing  the  age  below  which 
children  cannot  be  employed,  the  limit  ranging  from  twelve  to 
sixteen  years.  Exemption  may  be  made  in  cases  of  orphanage, 
of  poverty,  or  of  dependence  of  parents ;  also  as  regards  speci- 
fied employments,  such  as  farm  labor  and  the  canning 
and  preserving  of  fruits.  Labor  in  mines  is  prohibited  for 
women  and  children  in  a  number  of  states,  the  age  limit  for 
children  frequently  being  higher  in  this  than  in  other  em- 
ployments. Factories  and  workshops,  or  these  and  mercantile 
establishments,  are  most  frequently  designated  as  forbidden 
places  of  employment  for  children  in  industry ;  while  still  more 
numerous  laws  prohibit  classes  of  occupations,  designated  as 
injurious  or  immoral,  such  as  employment  for  acrobatic  exhi- 
bitions, as  pedlars,  in  barrooms,  for  mendicant  purposes,  and 
the  like.     There  is  sometimes  a  list  of  designated  dangerous 

100 


EMPLOYMENT  OF  WOMEN  AND  CHILDREN       101 

factory  employments,  including  the  cleaning  of  moving  machin- 
ery, the  operation  of  elevators,  and  of  certain  kinds  of  rolls, 
presses,  etc.  In  some  states  these  laws  include  females  in  a  part 
or  all  of  their  prohibitions,  laws  of  this  class  being  in  effect 
special  extensions  of  the  laws  relating  to  the  inspection  of  fac- 
tories and  workshops. 

Numerous  laws  have  been  enacted  restricting  absolutely  the 
hours  of  labor  of  children,*  or  of  women,^  or  of  both,'  laws  of  the 
third  class  being  most  common.  These  laws  have  a  double 
aspect,  the  public  being  concerned  in  the  question  of  a  healthful 
citizenship,  as  well  as  in  the  protection  of  classes  of  individuals 
who  are  in  a  sense  under  the  particular  protection  of  the  state.'' 
Limitations  may  also  be  made  in  the  matter  of  night  work.  In 
some  states  eight  hours  is  the  maximum  day's  work  allowed  for 
children,^  while  a  more  common  limit  is  nine  or  ten  hours,  reach- 
ing as  high  as  eleven  in  one  instance.^  The  range  of  night  work 
prohibited  also  varies,  as  from  six  p.m.  to  seven  a.m.,^  seven  p.m. 
to  six  A.M.,^  seven  p.m.  to  seven  a.m.,^  to  the  less  favorable 
limit  of  from  nine  p.m.  to  six  a.m.,*"  or  even  ten  p.m.  to  six  a.m." 

The  required  proof  of  age  is  usually  either  by  affidavit  or 
certificate,  including  in  the  latter  case  a  transcript  of  the  birth, 

>  Cal.,  Acts  1905,  ch.  18  ;  Ind.,  A.S.,  sec.  7087a ;  Ala.,  Code,  sec.  6430. 
»  Ore.,  Acts  1907,  ch.  200 ;  Wash.,  Acts  1901,  ch.  68. 

»  Mass.,  Acts  1909,  ch.  614,  sec.  48 ;  Conn.,  Acts  1907,  ch.  251 ;  N.J.,  G.L.,  p. 
2350. 

•  Muller  V.  State,  208  U.S.  412,  28  Sup.  Ct.  324 ;  Com.  v.  Hamilton  Mfg.  Co., 
120  Mass.  383;  People  v.  Ewer,  141  N.Y.  129,  36  N.E.  4;  State  v.  Shorcy,  48 
Ore.  396,  86  Pac.  881. 

» 111.  R.S.  ch.  48,  sec.  20 ;  Colo.,  Supp.,  sec  2801e ;  Neb.,  Acts  1907,  ch.  66. 

•  N.C.,  Acts  1907,  ch.  463. 

^  Mich.,  Acta  1901,  ch.  113 ;  Ore.,  Acts  1905,  ch.  208. 

•  Mass.,  Acta  1909,  ch.  514,  sec.  66.  •  Minn.,  Acts  1907,  ch.  299. 
w  Idaho,  Acts  1907,  p.  248.                                       "  Cal.,  Acta  1907,  ch.  624. 


102  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

school  records,  or  other  documents.  The  regulations  as  to 
employment  sometimes  vary  for  the  time  during  the  vacation 
of  school  from  those  in  force  during  the  school  term,  and  for 
illiterates  as  compared  with  literate  children.  The  detail  and 
variety  of  the  laws  of  this  class,  and  the  constant  modification 
of  them  in  the  various  states,  make  an  analytical  account  of  them 
impracticable  in  a  work  that  contemplates  only  a  general  survey 
of  the  laws  relating  to  labor.^ 

The  right  of  the  state  to  protect  children  in  employment  is 
practically  universally  recognized  in  respect  of  all  the  points 
named.2  It  has  been  said  that  "so  far  as  such  regulations 
control  and  limit  the  powers  of  minors  to  contract  for  labor, 
there  never  has  been  and  never  can  be  any  question  as  to  their 
constitutionality."  ^  Laws  affecting  safety  and  sanitation  in 
establishments  where  women  are  employed  are  likewise  gen- 
erally approved ;  ■*  but  laws  limiting  the  hours  of  labor  of  women 
have  been  held  to  be  unconstitutional  in  a  few  instances,  on  the 
ground  that  they  interfered  with  the  freedom  of  citizens  to 
contract,  infringing  on  the  present-day  equality  of  rights  of 
women  with  those  of  men.^  In  a  later  case  in  one  of  these  courts 
a  law  limiting  the  labor  of  women  in  certain  employments  to  ten 


»  See,  for  example,  111.,  R.S.,  ch.  48,  sees.  20-20m ;  Mass.,  Acts  1909,  eh.  514, 
sees.  56-77 ;  Ore.,  Acts  1905,  ch.  208 ;  Minn.,  Acts  1907,  ch.  299,  Acts  1909, 
ch.  499 ;   N.Y.,  C.L.,  ch.  31,  sees.  60-93. 

«  Ex  parte  Spencer,  149  Cal.  396,  86  Pac.  896 ;  Bryant  v.  Skillman  Hardware 
Co.,  76  N.J.L.  45,  69  Atl.  23 ;  Starnes  v.  Mfg.  Co.,  147  N.C.  556,  61  S.E.  525 ; 
State  V.  Shorey,  supra. 

*  1  Tiedeman,  State  and  Federal  Control,  p.  335,  citing  People  v.  Ewer,  supra. 

*  Wenham  v.  State,  65  Nebr.  394,  91  N.W.  421 ;  Com.  v.  Beatty,  15  Super.  Ct. 
(Pa.)  5. 

'  Ritchie  v.  People,  155  111.  98, 40  N.E.  454 ;  People  t>.  Williams,  189  N.Y.  131, 
81  N.E.  778.     See  also  Tiedeman.  loc.  cit. 


EMPLOYMENT  OP  WOMEN  AND  CHILDREN       103 

hours  per  day  ^  has  been  held  constitutional  as  a  health  regu- 
lation for  the  good  of  the  race.^  In  the  Williams  case,  a  law 
prohibiting  night  work  by  women  was  declared  unconstitutional 
by  a  New  York  court  on  the  ground  that  it  was  not  a  health 
law,  but  a  labor  law,  and  unduly  discriminatory  between  citizens, 
the  court  remarking  that  woman  is  no  more  the  ward  of  the 
state  than  is  man.  The  act  was  specifically  condemned 
because  it  not  only  sought  to  regulate  the  hours  of  labor  of 
women,  but  it  absolutely  prohibited  her  employment  for  any 
time,  however  brief,  between  certain  hours  of  the  night.  But 
even  the  concession  indicated  by  this  statement  would 
not  save  the  law  from  condemnation  by  a  court  that 
regarded  the  liberty  of  contract  as  the  paramount  con- 
sideration. In  most  courts,'  including  the  Supreme  Court 
of  the  United  States,  however,  the  view  is  taken  that  laws 
of  this  nature  are  within  the  police  power  of  the  state  as  health 
regulations,  sex  distinctions  warranting  a  discrimination  between 
men  and  women  engaged  in  Uke  occupations,  "having  in  view 
not  merely  her  own  health,  but  the  welfare  of  the  race."  *  A 
law  limiting  the  hours  of  labor  of  females  in  industrial  employ- 
ments, not  applying  to  work  in  canning  establishments,  was 
said  not  to  be  unconstitutional  by  reason  of  this  exception.^ 
The  same  principle  that  supports  the  foregoing  laws  would 
support  the  laws  found  in  a  majority  of  the  states  directing 
employers  to  furnish  seats  for  female  employees  and  to  permit 

>  III.,  Acts  1909.  p.  212. 

»  W.  C.  Ritchie  &  Co.  v.  Wayman,  244  111.  509,  91  N.E.  695. 

*  Com.  V.  Hamilton  Mfg.  Co.,  supra;  Wenham  v.  State,  supra;  State  v. 
Buchanan.  29  Wash.  602.  70  Pac.  5  ;  State  v.  Mullor,  48  Ore.  252, 85  Pac.  855 ; 
Muller  V.  State,  supra.  *  Muller  v.  State,  supra. 

»  Withey  v.  Bloem,  163  Mich.  419,  128  N.W.  913. 


104  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

their  reasonable  use.^     One  state  has  such  a  law  requiring  seats 
to  be  supplied  for  th^  use  of  children.^ 

Section  50.  Effect  of  Unlawful  Employment  on  the  Employer's 
Liability.  —  The  effect  on  the  employer's  liability  of  his  dis- 
regard of  the  laws  forbidding  the  employment  of  children  is  on 
much  the  same  footing  with  that  of  other  violations  of  statutory 
provisions  affecting  employment  conditions.'  Thus  some 
courts  hold  that  the  employment  of  a  child  under  statutory  age, 
who  is  injured  in  the  course  of  his  prohibited  employment,  is 
negligence  per  se  on  the  part  of  the  employer ;  *  while  in  others 
it  is  regarded  only  as  evidence  of  negligence.^  In  the  former 
view,  the  unlawful  employment  resulting  in  injury  supports  an 
action  for  damages,  in  which  it  has  frequently  been  held  that  the 
defenses  of  assumed  risks  and  contributory  negligence,  cannot 
be  offered ;  ^  and  even  where  it  is  only  evidence  of  negligence,  it 
has  been  said  that  if  the  jury  finds  from  all  the  evidence  that  the 
employment  was  negligence,  and  that  injury  resulted  there- 
from, there  can  and  should  be  a  recovery  in  the  case ; '  while  in 
the  Marino  case,  the  court  refused  to  allow  the  defenses  of 
assumed  risks  and  contributory  negligence.  In  another  juris- 
diction, it  was  made  the  ground  of  reversal  of  the  judgment  of 

»  Ala.,  Code,  sec.  6857 ;  Conn.,  G.S.,  sec.  4703  ;  Iowa,  Code,  sec.  4999 ;  Pa., 
B.P.  Dig.,  p.  902. 

»  Okla.,  Acts  1909,  p.  629,  sec.  6.  »  See  sec.  46. 

<  Leathers  v.  Tobacco  Co.,  144  N.C.  330,  57  S.E.  11 ;  American  Car  Co.  r. 
Armentraut,  214  111.  509,  73  N.E.  766 ;  Smith's  Admr.  v.  Coal  &  Iron  Co.,  135 
Ky.  671,  117  S.W.  280 ;  Lore  v.  Mfg.  Co.,  160  Mo.  608,  61  S.W.  678. 

'  Stehle  V.  Jaeger  Automatic  Machine  Co.,  220  Pa.  617, 69  Atl.  1116 ;  Marino  v. 
Lehmaier,  173  N.Y.  530,  66  N.E.  572. 

•  But  see  per  contra,  Darsam  v.  Kohlmann,  123  La.  164,  48  So.  781. 

^Stehle  V.  Jaeger  Automatic  Machine  Co.,  supra;  see  also  same  case,  225 
Pa.  348,  74  Atl.  215,  and  Lenahan  v.  Pittston  Coal  Mining  Co.,  218  Pa.  311,  67 
Atl.  642,  in  which  both  defenses  were  disallowed. 


EMPLOYMENT  OF  WOMEN  AND  CHILDREN       105 

a  lower  court  because  the  trial  judge  had  held  that  the  doc- 
trine of  assumed  risks  had  no  application  in  a  case  in  which 
a  child  thirteen  years  of  age  was  injured  in  the  course  of  his 
employment ;  ^  while  in  a  similar  case  the  decision  of  the  same 
judge  was  to  the  effect  that  a  child  under  fourteen  years  of  age 
is  presumed  to  be  incapable  of  assuming  the  risks  of  employ- 
ment, though  the  matter  is  one  for  the  jury.^  In  neither  of  the 
last  two  cases  was  a  statute  violated,  the  presumption  being  one 
of  common  law.  Where  a  statute  prohibits  the  employment  of 
a  child  under  a  fixed  age,  the  child's  or  his  parent's  misrepresen- 
tation is  no  defense  in  an  action  against  the  employer  for  injury 
resulting  from  the  unlawful  employment,^  and  evidently  a  con- 
trary ruling  would  allow  unlimited  violation  of  the  law.  The 
fact  that  a  child  had  been  employed  before  the  law  was  enacted 
in  no  way  removes  him  from  its  operation  when  it  comes  into 
effect.'' 

The  fact  of  the  subordination  of  the  child  to  the  parent  and 
of  the  parent's  interest  in  the  child's  earnings  gives  rise  to  the 
rule  of  law  that  where  injury  results  to  the  child,  the  parent  may 
recover  damages  for  the  loss  he  himself  suffers  on  account  of  the 
interruption  to  or  diminution  of  the  child's  earning  capacity, 
the  recovery  being  limited  in  this  respect  to  the  value  of  such 
services  during  minority.^  The  parent  in  making  the  contract 
assumes  the  risks  of  the  particular  employment  for  which  the 

>  Alexander  v.  Carolina  Mills,  83  S.C.  17,  64  S.E.  914. 

»  Owens  r.  Laurens  Cotton  Mills.  83  S.C.  19,  64  S.E.  915. 

«  Kirkham  v.  Wheeler-Osgood  Co.,  39  Wash.  415, 81  Pac.  869 ;  American  Car 
Co.  c.  Armentraut,  supra. 

*  Stehle  V.  Automatic  Machine  Co.,  225  Pa.  348,  74  Atl.  215. 

»  Union  P.  R.  Co.  v.  Fort,  84  U.S.  553, 21  L.  Ed.  739  ;  Shields  v.  Yonge,  15  Ga. 
356,  60  Am.  Dec.  698. 


106  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

contract  was  made,  but  of  that  only ;  so  that  if  the  child  is 
directed  to  perform  other  duties  and  is  injured  thereby,  the  de- 
fense of  assumed  risks  will  not  be  allowed  against  the  parent's 
claim.^  This  claim  and  recovery  by  the  parent  for  damages 
is  independent  of  the  child's  right  to  recover  for  personal  in- 
juries, and  separate  recoveries  may  be  had  for  the  two  elements 
of  damage.2 

Section  51.  Wages  of  Married  Women  and  Minors.  —  At 
common  law  a  married  woman  entering  service  was  assumed  to 
be  hired  out  by  her  husband,  so  that  her  earnings  belonged  to 
him ;  but  most  states  now  give  married  women  the  right  to 
their  earnings  as  their  individual  property.^  So  also  of  minors, 
who  are  unable  to  make  valid  contracts,  generally  speaking, 
and  whose  earnings  belong  to  the  parent  unless  it  can  be  made  to 
appear  that  they  have  been  emancipated,  or  that  the  parent  has 
failed  in  the  discharge  of  the  parental  duties.  Legislation  has 
modified  these  rules  of  the  common  law  in  a  number  of  states, 
so  that  the  payment  of  their  earnings  to  minors  is  valid  unless 
or  until  notice  is  given  by  the  parent  or  guardian  that  he  claims 
such  earnings.^  One  state  ^  provides  that  the  wages  of  a  minor 
shall  be  exempt  from  garnishment  or  other  process  on  account 
of  the  debts  of  the  parent. 

In  this  connection  may  be  mentioned  laws  found  in  a  few 
states  providing  penalties  for  able-bodied  parents  who  hire  out 

»  Union  P.  R.  Co.  v.  Fort,  supra ;  Braswell  v.  Cotton  Oil  Mill  Co.,  7  Ga.  App. 
167,  66  S.E.  539. 

»  Stehle  V.  Jaeger  Automatic  Machine  Co.,  225  Pa.  348,  74  Atl.  215. 

» III.,  R.S.,  ch.  58,  sec.  7 ;  Mass.,  R.L.,  ch.  153,  sec.  4 ;  N.Y.,  C.L.,  ch.  14,  sec. 
60. 

*  Cal.,  Civ.  Code,  sec.  212 ;  Minn.,  R.L.,  sec.  1812  ;  N.Y.,  C.L.,  ch.  14 ;  sec. 
72.  »  Va.,  Code,  sec.  3652c. 


EMPLOYMENT  OF  WOMEN  AND   CHILDREN       107 

their  minor  children  and  live  in  idleness  on  their  earnings ; '  the 
hiring  out  of  wives  is  coupled  with  that  of  children  in  Louisiana 
and  North  Carolina.  The  laws  generally  provide  for  the  pun- 
ishment of  the  delinquent  parent  as  a  vagrant. 

Laws  of  which  it  must  be  said  that  their  reason  and  validity 
seem  doubtful  are  found  in  a  very  few  jurisdictions  making 
special  provisions  relative  to  the  wages  of  women ;  as,  for  in- 
stance, one  prohibiting  deductions  from  their  wages  on  account 
of  the  stoppage  of  machinery  unless  they  are  allowed  to  leave 
the  factory,^  or  one  that  declares  no  property  exempt  in  case  of 
a  judgment  for  wages  earned  by  a  female,  if  the  judgment  and 
costs  do  not  exceed  a  specified  sum ; '  special  allowances  of  costs 
are  also  made.  No  good  reason  appears  why  distinctions 
should  be  made  between  adult  females  and  other  adults  in  regard 
to  such  matters. 

•  Ala.,  Code,  sec.  7843  ;  Ga.,  Acts  1905,  p.  109 ;  La.,  Acts  1904,  No.  178 : 
Miss.,  Code,  sec.  5055  ;  N.C.,  Rev.,  sec.  3740  ;  Tenn.,  Acts  1907,  ch.  25G  ;  Texas, 
Acts  1909,  ch.  59 ;  Va.,  Code,  sec.  884. 

»  Mass.,  Acts  1909,  ch.  514.  sec.  119. 

'Mich.,  C.L.,  sec.  900;  N.Y.,  Code  Civ.  Pro.,  sec.  3131.  The  New  York 
law  applies  to  Brooklyn  only,  and  gives  execution  against  the  person. 


CHAPTER  VI 

RESTRICTIONS   ON   EMPLOYEES 

Section  52.  Examination,  Registration,  etc.,  of  Workmen, — 
The  conditions  and  requirements  of  certain  occupations  are 
such  that  the  welfare  of  fellow  workmen  or  of  the  public  or  of 
both  is  dependent  on  the  experience  and  technical  ability  of  the 
employee.  Thus  in  mining,  it  has  been  declared  the  policy  of 
the  state  in  several  jurisdictions  to  require  certain  employees, 
as  managers,  mine  foremen,  fire  bosses,  and  hoisting  engineers, 
to  prove  their  qualifications  by  passing  an  examination  and 
giving  proof  of  experience,  after  which  a  certificate  is  issued, 
without  which  employment  in  the  designated  capacity  is  pro- 
hibited.^ Such  laws  also  penalize  an  employer  who  hires 
employees  of  these  classes  without  their  having  the  proper  creden- 
tials. The  second  class  of  laws  named,  i.e.,  affecting  the  public 
only,  is  represented  by  laws  requiring  barbers  to  be  examined 
and  procure  licenses ;  ^  while  both  the  fellow  servant  and  the 
public  are  interested  in  the  efficiency  of  railway  employees. 
Laws  relating  to  them  may  contemplate,  among  other  qualifi- 
cations, physical  incapacity,  as  color  blindness  of  employees 
whose  duties  require  them  to  distinguish  signals ;  ^  or  they  may 

1  Ala.,  Code,  sees.  1006,  1007 ;  111.,  Acts  1907,  p.  387 ;  Ind.,  Acta  1906,  ch. 
60,  sees.  21,  22 ;  Mo.,  Acts  1903,  p.  242. 

*  Md.,  Acts  1904,  ch.  226 ;  Wis.,  A.S.,  sees.  1636-18  to  1636-30 ;  Mich.  Acta 
1899,  No.  212 ;  Ore.,  Acts  1903,  p.  27. 

•  Ala.,  Code,  sees.  5481-5483,  7655 ;  Mass.,  Acta  1906,  ch.  463,  Pt.  II,  sec. 
179 ;  Ohio,  Gen.  Code,  sec.  12,648. 

108 


RESTRICTIONS  ON  EMPLOYEES  109 

look  merely  to  the  technical  skill  and  experience  needed  by  a 
telegraph  operator  whose  duties  are  connected  with  the  move- 
ments of  trains.^ 

Other  classes  of  employees  coming  within  regulations  of  this 
sort  are  horseshoers,^  plumbers,'  electricians/  elevator  opera- 
tors,^ stationary  firemen,'  steam  engineers,^  street  railway 
employees,^  and,  in  some  states,  all  coal  miners.^ 

Section  53.  Status  of  Certified  Employees.  —  The  objects  in 
view  in  the  enactment  of  these  laws  are  various,  as  their  wide 
range  would  indicate.  That  foremen  in  charge  of  gaseous  mines 
should  be  competent,  or  that  mine  managers  and  other  em- 
ployees having  special  duties  affecting  safety  should  be  able  to 
prove  their  fitness  for  their  positions  is  no  less  important  than 
that  places  and  appliances  should  conform  to  a  reasonable 
standard  of  safety.^"  Courts  have  taken  radically  different 
views  as  to  the  status  of  such  certified  employees  as  the  law 
compels  to  be  put  in  charge  of  work  or  places.  Thus,  the  law 
of  1891  of  the  state  of  Pennsylvania,  requiring  the  employment 
of  certified  mine  foremen,  contained  the  provision  that  for  in- 

J  Ga.,  Code,  sec.  2237. 

»  Colo.,  A.S.,  sees.  2801t-2801z  ;   Minn.,  R.L.,  sees.  2354-2356. 
» Cal.,  Sims'  G.L.,  Nos.  2838,  2839 ;  111.,  R.S.,  ch.  24,  sees.  498-604 ;  Mass., 
R.L.,  ch.  103  ;  Pa.,  Acts  1909,  No.  667. 

•  Minn.,  R.L.,  sees.  2357-2364 ;  La.,  Acta  1908,  No.  178. 
»  Minn.,  R.L.,  sec.  761. 

•Mass.,  R.L.,  ch.  102,  sees.  78-86;  Mont.,  Pol.  Code,  sees.  660  et  aeq.. 
Acts  1905,  ch  32. 

'Ala.,  Code,  sec.  7091;  Minn.,  R.L.,  soca.  2174,  et  aeq.;  Ohio,  Acta  1910, 
p.  361 ;  Pa.,  B.'  Dig.,  p.  535,  Acts  1905,  No.  75. 

•  N.Y.,  Con.  L.,  Ch.  49,  sec.  63  ;  Wash.,  Acts  1901.  Ch.  103. 

•  111.,  Acts  1909.  p.  284  ;  Pa..  B.  Dig.,  p.  448  (in  anthracite  mines  only). 

>»  Wilmington  Star  Min.  Co.  v.  Fulton,  205  U.S.  60.  27  Sup.  Ct.  412  ;  Henrietta 
Coal  Co.  II.  Martin.  221  111.  400,  77  N.E.  902  ;  State  r.  Murlin,  137  Mo.  297,  38 
S.W.  923. 


110  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

juries  to  person  or  property  caused  by  violations  of  the  act  by 
such  mine  foremen,  the  company  should  be  liable  in  damages. 
In  the  trial  of  an  action  under  this  provision, '  the  supreme  court 
of  the  state  declared  this  provision  unconstitutional,  holding 
that  the  compulsory  employment  of  a  certified  employee  took 
out  of  the  hands  of  the  employer  his  discretion  and  therefore  his 
responsibility  in  the  matter.  The  mine  foreman  was  held  to 
be  the  representative  of  the  state,  for  whose  incompetency,  if 
any,  the  employer  could  not  be  made  legally  responsible.  He 
was  also  held  to  be  but  a  fellow  servant  of  the  miners,  and  in  no 
sense  the  employer's  vice-principal,  the  declaration  of  the  stat- 
ute to  the  contrary  notwithstanding.  This  view  is  followed 
in  other  jurisdictions,  the  court  stating  in  one  instance  that 
when  the  employer  had  complied  with  the  law  by  employing  a 
certified  mining  boss,  no  liability  attaches  for  the  tortious  and 
negligent  acts  of  the  latter.^ 

The  divergency  of  views  held  in  different  jurisdictions  in 
regard  to  the  common  law  doctrine  of  vice-principalship  is  noted 
elsewhere,^  and  it  is  but  natural  that  this  divergence  should 
affect  the  construction  of  statutes  that  are  quite  similar  in  phrase- 
ology. The  Illinois  doctrine  of  vice-principalship  differs  from 
that  accepted  in  Pennsylvania,  and  in  a  case  in  which  the  same 
point  as  that  above  discussed  was  being  considered  by  the  Illinois 
supreme  court  under  a  law  of  practically  the  same  form,  the 
court  reviewed  the  Durkin  and  Williams  cases,  and  rejected  the 

1  Durkin  v.  Kingston  Coal  Co.,  171  Pa.  193,  33  Atl.  237.  See  also  Golden  v. 
Coal  Co.  225  Pa.  164.  73  Atl.  1103. 

» Williams  v.  Thacker  Coal  &  Coke  Co.,  44  W.  Va.  599,30S.E.  107,  citing 
14  A.  &  E.  Enc.  Law,  809 ;  McMillan  v.  Coal  &  Coke  Co.,  61  W.  Va.  531,  57 
S.E.  129  ;  Coal  Co.  v.  Lamb,  6  Colo.  App.  255,  40  Pac.  251. 

» See  sees.  82-88. 


RESTRICTIONS  ON  EMPLOYEES  111 

doctrine  therein  laid  down,  holding  that  the  duties  of  inspection 
and  management  were  the  employer's,  which  he  might  himself 
perform  if  qualified,  otherwise  to  be  performed  through  some 
other  person  who  has  been  able  to  obtain  a  certificate  ;  but  being 
still  the  master's  duties,  he  is  responsible  for  the  negligent  per- 
formance of  them,  whether  by  himself  or  by  his  agent. ^  The 
fact  that  he  is  required  to  employ  a  manager  who  is  certified  by 
the  state  was  held  to  be  without  significance  as  relieving  him 
from  responsibility,  as  the  employer  was  under  no  obligation 
to  employ  or  retain  any  particular  individual,  and  could  dis- 
charge for  cause  of  incompetence  or  otherwise,  the  effect  of  the 
law  being  simply  to  eliminate  the  obviously  unfit,  and  to  form 
a  class  from  which  the  employer  might  reasonably  expect  to 
procure  a  fit  representative  in  this  respect,  but  not  to  enable  him 
to  shift  his  responsibility  to  his  employees  by  reason  of  the  act.^ 
This  view  and  construction  of  the  law  were  adopted  by  the 
Supreme  Court  in  a  case  ^  in  which  this  point  was  under  con- 
sideration in  an  action  arising  under  the  Illinois  statute,  and  it 
seems  clear  that  such  a  rule  is  both  better  law  and  better  reason. 
The  statute  may  explicitly  put  the  matter  at  rest  by  declaring 
that  the  manager  or  foreman  provided  for  by  the  act  shall  be 
regarded  as  the  representative  of  the  mine  owner,  and  not  as 
the  fellow  workman  of  the  miners,^  such  an  enactment  being 
clearly  within  the  power  of  the  state  legislature.* 

>  Henrietta  Coal  Co.  v.  Martin,  221  111.  460,  77  N.E.  902. 

» See  further  Consol.  Coal  Co.  v.  Senigcr,  17'.)  111.  370,  53  N.E.  733  ;  Smith  r. 
Dayton  Coal  &  Iron  Co.,  115  Tenn.  543,  92  S.W.  62 ;  Poli  r.  Coal  Co.,  (Iowa) 
127  N.W.  1105. 

«  Wilmington  Star  Min.  Co.  r.  Fulton,  205  U.S.  60,  27  Sup.  Ct.  412. 

<  Tenn.,  Acts  1907,  ch.  540. 

•  Wilmington  Star  Min.  Co.  v.  Fulton,  supra;  Western  U.  Tel.  Co.  r.  Milling 
Co.,  218  U.S.  406,  31  Sup.  Ct.  59.     In  the  latter  case  it  was  said  that  "The  com- 


112  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Section  54.  Grounds  for  Legislative  Interference.  —  The  law 
of  Pennsylvania  requiring  all  miners  in  anthracite  mines  to  have 
certificates  of  competency  has  been  judicially  enforced  as  a 
measure  to  secure  the  safety  of  the  employees.^ 

Laws  classifying  stationary  engineers  and  requiring  them  to 
procure  licenses  are  held  constitutional  "^  on  the  ground  that  they 
are  a  police  regulation  designed  to  secure  public  safety  by  re- 
quiring only  competent  persons  to  be  entrusted  with  the  control 
of  dangerous  and  widely  used  instrumentalities ;  though  a  law 
of  Ohio,  providing  that  if  on  examination  an  applicant  was 
found  to  be  trustworthy  and  competent,  a  license  should  issue,' 
was  declared  unconstitutional  as  interfering  with  the  rights  of 
citizens  and  affecting  their  equality,  as  well  as  conferring  auto- 
cratic power  on  the  examiner,  for  whom  the  legislature  had  fixed 
no  standard.* 

In  the  matter  of  railroad  employees,  the  question  of  uncon- 
stitutional interference  with  interstate  commerce  was  raised  in 
a  case  that  arose  under  an  earlier  statute  of  Alabama  that  ap- 
plied only  to  locomotive  engineers.  The  supreme  court  of  the 
state  and  of  the  United  States  overruled  the  contention,  holding 
that  the  law  was  but  a  reasonable  exercise  of  the  police  power  of 
the  state,  and  not  a  commerce  law.^    The  present  law  extends 

mon  law  did  not  become  a  part  of  the  laws  of  the  states  of  its  own  vigor.  It  has 
been  adopted  by  constitutional  provision,  by  statute  or  decision,  .  .  .  but 
however  adopted,  it  expresses  the  policy  of  the  state  for  the  time  being  only,  and 
is  subject  to  change  by  the  power  that  adopted  it." 

1  Com.  V.  Shaleen,  215  Pa.  595,  64  Atl.  797. 

« State  V.  McMahon,  65  Minn.  453,  68  N.W.  77 ;  Hj^onen  v.  Hector  Iron 
Co.,  103  Minn.  331,  115  N.W.  167.  '  Acts  1900,  p.  33. 

*  Harmon  v.  State,  66  Ohio  St.  249,  64  N.E.  117. 

«  McDonald  v.  State,  81  Ala.  279,  2  So.  829 ;  Smith  v.  Alabama,  124  U.S.  465, 
8  Sup.  Ct.  564. 


RESTRICTIONS  ON  EMPLOYEES  113 

the  test  as  to  color  blindness  to  trainmen,  trackmen,  switchmen, 
and  train  dispatchers,  and  has  been  construed  in  the  same 
manner  as  the  more  limited  law.^  A  provision  in  the  earher 
law  that  required  the  railroad  company  to  pay  the  fees  for  the 
examinations  was  declared  unconstitutional  by  the  state  court,* 
though  the  Supreme  Court  of  the  United  States '  upheld  in  its 
entirety  a  statute  embodying  this  provision  as  to  the  payment 
of  fees.  A  law  prescribing  the  length  and  grade  of  service  of 
various  classes  of  employees  prior  to  their  appointment  or  pro- 
motion *  was  declared  unconstitutional  by  the  supreme  court  of 
Ohio^  in  a  memorandum  adopting  the  opinion  of  the  court 
below,'  in  which  it  was  said  that  the  law  affected  unequally 
employees  in  the  same  class  of  service,  and  was  therefore  repug- 
nant to  the  constitution ;  but  whether  or  not  in  any  particular 
instance  a  law  of  this  class  is  aptly  drawn,  or  proper  provisions  are 
incorporated  for  its  enforcement,  it  does  not  seem  open  to  ques- 
tion that  the  power  of  the  state  cannot  be  held  to  fall  short  of 
prescribing  standards  of  ability  and  competence  in  matters 
affecting  the  public  welfare. 

Within  these  reasons  fall  the  laws  which  restrict  the  practice 
of  plumbing  to  workmen  who  have  been  able  to  prove  compe- 
tency and  secure  licenses  to  prosecute  their  trade ;  ^  though  it  has 
been  held  that  inspection  and  not  a  restrictive  licensing  law  is  the 
proper  method  of  reaching  the  desired  end,^  a  law  of  the  latter 

>  Nashville,  etc.,  R.  Co.,  v.  Alabama,  128  U.S.  96,  9  Sup.  Ct.  28. 
»  Louisville  &  N.  R.  Co.  v.  Baldwin,  85  Ala.  619,  5  So.  311. 
'  Nashville,  etc.  R.  Co.  r.  Alabama,  supra. 

*  Ohio,  Acts  1893,  p.  20. 

»  State  V.  Cleveland,  etc.,  R.  Co.,  70  Ohio  St.  506,  72  N.E.  1165. 

•  26  Ohio  C.  C.  Rep.  348. 

'  Douglas  V.  People,  225  lU.    536,  80  N.E.  341 ;  Davidson  v.  State,  77  Md. 
388.  26  Atl.  415.                                »  State  v.  Smith,  42  Wash.  237,  84  Pac.  851. 
I  ■       • 


114  LAW  OF  THE   EMPLOYMENT   OF  LABOR 

class  being  in  this  case  declared  unconstitutional.  How  far 
such  laws  may  properly  go  is,  indeed,  a  question  not  yet  decided, 
nor  is  it  easy  of  decision.  The  law  relating  to  the  licensing  of 
horseshoers,  for  instance,  has  repeatedly  been  held  to  be  an 
unwarranted  and  arbitrary  interference  with  the  liberty  of  the 
citizen  and  his  right  of  private  property.^  The  same  language 
was  used  in  a  case  in  which  a  law  licensing  plumbers  was  under 
consideration,^  though  such  a  view  is  without  doubt  opposed 
to  the  better  opinion,  since  such  an  employment  too  closely 
affects  the  welfare  of  the  pubUc  to  demand  that  it  shall  not  be 
subject  to  proper  restrictions  as  to  its  practice.' 

In  the  case  of  barbers  there  is  usually  coupled  with  the  ques- 
tion of  skill  that  of  personal  freedom  from  contagious  and  in- 
fectious diseases,  and  of  such  knowledge  of  the  more  common 
affections  of  the  skin  as  will  enable  them  to  shave  one  suffering 
from  them  without  aggravating  their  condition ;  so  that  there 
is  here  clearly  in  view  the  protection  of  the  public  health.  The 
board  of  examiners  is  also  frequently  a  board  of  inspection  as 
to  the  conditions  maintained  in  shops.  Within  the  range  of 
health  provisions,  these  laws  command  support  under  the  police 
power  of  the  state.*  Where,  however,  under  the  guise  of  regu- 
lation, provisions  are  introduced  whose  apparent  intent  is  to 
restrict  the  practice  of  the  trade  by  unreasonable  requirements 
and    limitations,    such    provisions    will    be    declared    uncon- 

'  Bessette  v.  People,  193  111.  334,  62  N.  E.  215 ;  People  v.  Beattie,  89  N.  Y. 
Supp.  193,  96  App.  Div.  383  ;  In  re  Aubry,  36  Wash.  308,  78  Pac.  900. 

*  State  V.  Smith,  supra. 

*  Caven  v.  Coleman  (Tex.  Civ.  App.),  96  S.W.  774  ;  State  v.  Gardner,  58  Ohio 
St.  599,  51  N.E.  136. 

*  State  V.  Briggs,  45  Ore.  366,  77  Pac.  750;  Ex  parte  Lucas,  160  Mo.  218,  61 
S.W.  218 ;  State  v.  Sharpless,  31  Wash.  191,  71  Pac.  737 ;  State  v.  Zeno,  79  Minn. 
80,  81  N.W.  748. 


RESTRICTIONS  ON  EMPLOYEES  115 

stitutional.  Such  was  the  case  in  a  law  prohibiting  the  granting 
of  a  certificate  to  aUens/  and  one  making  two  years'  study  as  an 
apprentice  under  a  qualified  barber,  or  practice  for  a  like  period 
as  a  qualified  barber  a  prerequisite  to  the  granting  of  a  certifi- 
cate ;  2  but  a  law  was  upheld  which  required  applicants  to  pass 
an  examination  before  receiving  a  certificate  unless  they  had 
practiced  as  barbers  for  two  years  in  the  state  prior  to  the  mak- 
ing of  their  application,  a  total  of  two  years  without  and  within 
the  state  being  held  not  to  satisfy  the  provision.^ 

The  statute  of  Texas  on  this  subject  *  was  held  to  be  uncon- 
stitutional ^  both  as  violating  the  provision  of  the  constitution 
of  the  state  that  exempts  mechanical  pursuits  from  an  occupa- 
tion tax,  and  as  making  discrimination  between  students  work- 
ing their  way  as  barbers  at  the  state  university,  barbers  at  the 
eleemosynary  institutions  of  the  state,  and  barbers  in  towns  of 
less  than  one  thousand  population  (all  of  whom  are  exempt 
from  the  application  of  the  law),  and  all  other  barbers,  who 
must  procure  certificates  or  forego  practice. 

The  entire  subject  of  examination  and  licensing,  as  is  true  of 
the  whole  subject  of  the  regulation  of  the  conditions  of  employ- 
ment, is  affected  by  the  development  of  industry  in  its  modern 
forms,  and  the  corresponding  growth  of  ideas  of  public  policy. 
The  contractor  for  work  no  longer  does  it  himself,  and  neither 
fellow  servants  nor  the  employer  are  able  to  observe  and  guard 
against  the  negligent  acts  of  unskillful  workmen  as  may  easily 
have  been  the  case  in  days  of  small  undertakings  and  intimate 

»  Templar  v.  State  Board.  131  Mich.  254.  90  N.W.  1058. 

*  State  V.  Walker.  48  Wash.  8.  92  Pae.  775. 

»  Wasa  V.  State  Board,  123  Mich.  544,  82  N.W.  234, 

«Act3  1907,  ch.  141. 

»  Jackson  v.  State,  55  Texas  Cr.  App.  557,  1 17  S.  W.  818. 


116  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

relationships  between  workmen  and  employer.  The  remark  of 
the  court  in  the  Pennsylvania  case  relative  to  the  compulsory 
employment  of  a  certified  mine  foreman,  that  it  is  as  if  the  state 
were  saying,  "You  cannot  be  trusted  to  manage  your  own  busi- 
ness ;  left  to  yourself,  you  will  not  properly  care  for  your  own 
employees,"  ^  is  more  and  more  the  attitude  of  the  state,  and  is 
being  approved  by  legislatures  and  courts  alike  as  the  necessary 
viewpoint  in  a  time  when  great  corporations  and  deputed 
directive  agents  are  so  largely  in  evidence  in  the  conduct  of 
industry.  The  law  indicates  to  the  individual  a  standard  that 
has  been  fixed  upon  as  the  result  of  the  collective  experience  of 
the  many,  with  something  of  the  inevitable  bias  of  ex  parte 
determination  eliminated,  and  it  cannot  be  questioned  that  the 
condition  of  both  employer  and  employee  is  the  better  for  such 
provisions.  The  fact  remains  that  a  just  ground  for  interven- 
tion must  appear,  and  that  the  rights  of  liberty  and  property 
may  not  be  arbitrarily  infringed  upon  under  the  guise  of  either 
health  or  safety  regulations,  or  for  the  alleged  prevention  of 
fraud  or  oppression  where  the  parties  concerned  are  sui  juris  and 
on  a  reasonably  equal  footing. 

A  simple  and  clearly  defensible  law  is  one  that  forbids  the 
employment  on  railway  engines  of  illiterate  engineers.^  One 
state  applies  this  rule  to  flagmen,  hostlers,  and  assistant  host- 
lers.' 

Section  55.  Age  as  Condition  of  Employment.  —  Among 
other  conditions  that  may  be  embodied  in  statutes  determining 
the  fitness  of  employees  for  certain  duties  is  that  of  age,  as  of 

»  Durkin  v.  Kingston  Coal  Co.,  171  Pa.  193,  33  Atl.  237. 

«  Minn.,  R.L.,  sec.  4999 ;  N.Y.,  C.L.,  ch.  40,  sec.  1982 ;  Wash.,  Acts  1909, 
ch.  249,  sec.  274.  » Ohio,  Gen.  Code,  sec.  12,551. 


RESTRICTIONS  ON  EMPLOYEES  117 

telegraph  operators,^  elevator  operators,'^  mine  foremen,'  and 
the  like.  The  reasons  for  such  laws  are  for  the  most  part  dif- 
ferent from  those  limiting  the  employment  of  young  children, 
as  the  classes  of  persons  covered  are  those  whose  acts  and  dis- 
cretion involve  the  safety  of  others  quite  as  much  as  their  own 
welfare.'*  The  reasonableness  of  such  regulations  is  apparent, 
coming  within  that  of  other  provisions  looking  to  the  safety  of 
workmen.^  The  employer  may  make  such  rules  of  his  own 
volition,  and  it  has  been  held  that  an  employee  who  misrepre- 
sents his  age  to  evade  the  regulation  is  not  entitled  to  recover 
damages  if  he  is  injured  in  the  course  of  his  employment,  being 
no  better  than  a  trespasser.^  The  better  reason,  however,  rests 
with  the  view  that  the  employer  is  relieved  of  liability  only  if 
the  age  is  a  cause  of  the  injury;^  but  while  the  employment 
continues,  there  is  a  relation  of  master  and  servant  subsisting, 
and  a  corresponding  liability  for  negligence  toward  such  an  em- 
ployee, the  contract  being  voidable  but  not  void.^ 

A  statute  that  prohibits  the  discharge  of  any  person  between 
the  ages  of  eighteen  and  sixty  solely  on  account  of  age  ®  may  be 
mentioned  in  this  connection. 

Section  56.   Resident  Laborers  —  Aliens.  —  Laws  that  have 

>  Colo.,  A.S.,  sec.  1396a ;  N.Y.,  C.L.,  ch.  40,  sec.  1982. 

»  Mass.,  Acts  1909,  ch.  514,  sec.  74. 

«  Mont.,  Acts  1909.  ch.  69 ;   Mo.,  Acts  1903,  p.  242. 

*  Moranr.  Dickinson,  204  Mass.  559,  90N.E.  1150. 
'  Moran  v.  Dickinson,  supra. 

•  Norfolk  &  W.  R.  Co.  v.  Bondurant,  107  Va.  515.  69  S.E.  1091. 

'  McDermott  v.  Iowa  Falls,  etc.  R.  Co.,  47  N.W.  1037  (Iowa) ;  Luphcr  c. 
Atchison,  T.  &  S.  F.  R.  Co..  81  Kans.  585.  106  Pac.  284  ;  Denver  <fc  R.  G.  R.  Co.  v. 
Reiter,  47  Colo.  417.  107  Pac.  1100. 

»  Lake  Shore  &  M.  S.  R.  Co.  v.  Baldwin,  19  Ohio  Cir.  Ct.  R.  338 ;  Lupher  v. 
Atchison,  T.  &.  S.  F.  R.  Co.,  supra;  Matlock  v.  Williamsville,  etc.,  R.  Co.,  198 
Mo.  495,  95  S.W.  849.  •  Colo..  A.S.,  sec.  2801c2. 


118  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

regard  for  the  interests  of  local  or  resident  labor  are  to  be  found 
in  a  number  of  states,  particularly  as  regards  public  service. 
Belonging  to  this  class  are  laws  directing  public  printing  to  be 
done  within  the  state. ^  Evidence  of  combination  or  great  dif- 
ference of  cost  gives  officers  a  right  to  accept  bids  from  outside 
the  state,  though  in  one  case  local  printers  are  allowed  a  margin 
of  fifteen  per  cent  over  outside  competitors.^  Of  like  purpose 
are  laws  directing  a  preference  of  domestic  over  foreign  prod- 
ucts as  supplies  for  public  use,^  and  of  resident  laborers  as  em- 
ployees on  public  works.*  This  latter  provision  may  be  extended 
to  a  prohibition  of  the  employment  of  aliens  on  such  under- 
takings ;  ^  or,  more  specifically,  of  Chinese  or  persons  of  Mon- 
golian descent.®  The  statute  of  Nevada  goes  so  far  as  to  declare 
the  forfeiture  of  the  charter  of  any  railroad  company  or  other 
corporation  employing  Chinese  for  the  construction  of  any 
public  works,  while  a  provision  of  the  constitution  of  California  ^ 
prohibited  their  employment  by  any  corporation  in  any  capacity. 
In  the  construction  by  the  courts  of  laws  of  this  class,  it  has 
been  held  that  the  law  of  New  York  directing  a  preference  of 
resident  laborers  is  not  binding  on  contractors  on  municipal 
undertakings ;  ^  while  the  law  of  California  prohibiting  the 
employment  of  Chinese,  enacted  in  accordance  with  the  pro- 

lAla.,  Code,  sec.  1657;  Colo.,  Supp.,  sec.  804b;  III.,  R.S.,  eh.  127,  sec.  13; 
Tenn.,  Acts  1907,  ch.  593.  '  N.  Dak.,  R.C.,  sec.  2282. 

'  Cal.,  Acts  1897,  ch.  149  ;  N.  Dak.,  R.C.,  sec.  1290;  U.S.,  R.S.,  sees.  69,  1829. 

*  Mass.,  Acts  1904,  ch.  311 ;  N.Y.,  Con.  L.,  ch.  31,  sec.  14;  N.  Mex.,  Acts 
1905,  ch.  124. 

'Cal.,  Polit.  Code,  sec.  2545,  Sims'  G.L.,  No.  127;  Mass.,  loc.  ciL;  N.Y., 
loc.  cit. ;  N.J.,  Acts  1899,  ch.  202. 

«Cal.,  Const.,  art.  19,  sec.  3;  Mont.,  Acts  1903,  ch.  114;  U.S.,  32  Stat.  389 
(irrigation  works  only) ;  Nev.,  C.L.,  sees.  5004-5006.  '  Art.  19,  sec.  2. 

8  People  V.  Warren,  13  Misc.  618,  34  N.  Y.  Supp.  942. 


RESTRICTIONS  ON  EMPLOYEES  119 

visions  of  the  constitution  above  noted,  were,  with  these  pro- 
visions themselves,  held  to  be  unconstitutional  and  void,  both 
as  violating  the  provisions  of  the  treaty  with  China  and  as  con- 
flicting with  the  fundamental  law  expressed  in  the  fourteenth 
amendment  to  the  federal  Constitution ;  ^  so  of  a  statute  of 
Oregon  prohibiting  the  employment  of  Chinese  on  public  works  j^ 
and  in  general,  laws  discriminating  against  aliens  or  non-resi- 
dents are  not  favored  by  the  courts,  since  the  fourteenth 
amendment  is  held  to  protect  with  its  equality  clause  all  persons 
in  the  United  States,  without  regard  to  citizenship.^  Thus  the 
law  of  Pennsylvania  restricting  employment  on  public  works 
to  citizens  was  held  not  to  be  a  defense  in  an  action  by  aliens  to 
recover  wages  earned  by  them,  though  their  employment  was  in 
violation  of  the  act,^  and  a  New  York  statute  directing  the  pref- 
erence of  citizens  on  municipal  undertakings  has  already  been 
mentioned  as  not  binding  on  contractors ;  the  same  view 
was  taken  by  the  courts  of  Illinois  with  reference  to  a  similar 
law.^  A  law  of  New  York  ^  which  prohibited  the  use  of  stone 
on  public  works  of  the  state  except  that  dressed  or  worked 
within  the  state  was  held  to  be  unconstitutional  as  an  inter- 
ference with  interstate  commerce.  "The  citizens  of  the  state 
have  the  right  to  enter  the  markets  of  every  other  state  to  sell 
their  products  or  to  buy  whatever  they  need,  and  all  interference 
therewith  by  state  legislation  is  void,"  ^     Of  a  somewhat  dif- 


>  In  re  Parrott,  1  Fed.  481,  6  Sawyer  349. 

*  Baker  v.  Portland,  5  Sawyer  566. 

»  Yick  Wo  V.  Hopkins.  118  U.S.  356,  6  Sup.  Ct.  1064. 

*  Philadelphia  v.  McLinden,  205  Pa.  S.  172,  54  Atl.  719. 
'  City  of  Chicago  v.  Hulbert.  205  III.  340,  68  N.E.  786. 
•Acts  1897,  ch.  415,  sec.  14. 

»  People  V.  Coler,  106  N.Y.  144.  59  N.E.  776 


120  LAW  OF  THE   EMPLOYMENT  , OP  LABOR 

ferent  nature,  but  falling  under  the  ban  of  unconstitutionality 
like  the  rest,  was  a  law  of  Michigan  providing  for  the  licensing 
of  barbers,  but  withholding  licenses  from  aliens,^  the  law  being 
declared  repugnant  to  the  provisions  of  the  fourteenth  amend- 
ment.2  Since  neither  in  public  employments  nor  in  those  regu- 
lated by  the  state  can  such  discriminations  be  supported,  a 
fortiori,  they  would  fail  in  efforts  to  regulate  purely  private 
contracts. 

There  is,  however,  a  law  of  this  class  which,  being  enacted  by 
the  Congress  of  the  United  States  on  a  subject  as  to  which  it 
admittedly  has  authority  to  act,  has  been  uniformly  sustained 
and  enforced,  i.e.,  the  law  prohibiting  the  importation  of  aUen 
contract  labor. ^  State  laws  bearing  on  the  subject  in  some 
aspects  have  been  passed  in  a  few  cases.  Thus  a  law  of  Dela- 
ware provides  for  contracts  by  state  agents  with  laborers  in 
foreign  countries  for  importation  for  agricultural  employment,* 
while  laws  of  Virginia*  and  Wyoming®  declare  that  contracts 
with  alien  laborers  shall  be  valid  in  those  states  for  limited 
periods.  A  statute  of  Indiana  prohibits  the  importation  of 
aliens  under  contract.'^  Inasmuch  as  the  whole  matter  falls 
within  the  powers  of  Congress,  all  state  legislation  in  conflict 
with  federal  laws  is  pro  tanto  void. 

A  law  that  favors  local  mechanics  in  a  matter  not  involving 
the  use  of  public  funds  is  one  requiring  railroads  operating  in 
the  state  to  maintain  repair  shops  therein  for  the  repair  and 

lActs  1899,  No.  212. 

>  Templar  v.  Board,  131  Mich.  254,  90  N.W.  1058. 

»  34  Stat.  898.  Chinese  Exclusion  Case,  130  U.S.  581,  9  Sup.  Ct.  623  ;  Lees 
V.  U.S.,  150  U.S.  476,  14  Sup.  Ct.  163. 

*  Acts  1907,  ch.  116.  »  Code,  sees.  44-48. 

•  R.S.,  sec.  2520.  '  A.S.,  sees.  7079  et  aeq. 


RESTRICTIONS  ON  EMPLOYEES  121 

rebuilding  of  its  rolling  stock.^  The  validity  of  such  laws,  in 
view  of  the  decisions  above  cited,  is  to  say  the  least  doubtful. 
Private  employment  is  touched  upon  by  other  laws  directed  to 
the  subject  of  alien  labor,  as  one  requiring  employers  of  aliens 
to  deduct  the  taxes  due  from  such  employees  from  their  wages ;  ^ 
and  laws  looking  to  the  protection  of  the  wages  of  aliens  as  a 
class  of  people  ignorant  of  the  language  and  customs  of  the 
country,  and  thus  easily  liable  to  imposition.'  A  law  that 
taxed  the  employers  of  ahen  laborers,  allowing  them  to  deduct 
the  tax  from  the  wages  of  such  employees,^  was  declared  uncon- 
stitutional as  violative  of  the  guarantees  of  the  fourteenth 
amendment,  such  a  statute  being  a  discrimination  against  the 
employment  of  aliens,  whether  the  tax  be  deducted  from  their 
wages  or  paid  by  the  employer  himself.^ 

A  construction  of  statutes  that  affects  aliens  adversely  is 
that  which  deprives  non-resident  beneficiaries  in  some  juris- 
dictions of  the  benefits  of  the  so-called  Lord  Campbell's  Act,  or 
the  statute  which  grants  to  the  heirs  or  personal  representatives 
of  persons  killed  by  the  negligence  of  another  a  right  of  recovery 
against  the  responsible  person.  This  is  not  strictly  a  labor  law, 
but  is  of  general  application,  and  has  gone  far  to  ameliorate  the 
condition  of  the  surviving  families  of  the  victims  of  industrial 
accidents.  Where  the  dependents  of  a  deceased  alien  workman 
are  non-residents,  the  courts  of  some  states  deny  to  them  the 
benefits  of  this  law  on  the  ground  that  the  legislature  acts  for 

«  La.,  Acta  1908.  No.  296;  Texas,  Acts  1909,  eh.  33, 

«  Pa.,  Acts  1897,  ch.  108. 

«  Conn.,  G.S.,  sec.  4607;  Wyo.,  R.S.,  sec.  2521. 

*  Pa..  Acts  1897,  No.  139. 

•  Eraser  v.  McConway  &  Torley  Co.,  82  Fed.  257 ;  Juniata  Limestone  Co.  •. 
Fagley,  187  Pa.  St.  193,  40  Atl.  977. 


122  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

citizens,  or  at  most  for  residents  of  the  state,  and  that  its  powers 
do  not  extend  beyx)nd  its  borders ;  also  that  its  own  citizens 
employed  abroad  would  not  be  afforded  protection  in  like  cir- 
cumstances,^ The  more  common,  and  certainly  the  more 
humane  view,  is  that  the  negligent  employer  should  be  called 
upon  to  repair  to  some  extent  the  injury  caused  by  his  negh- 
gence,  and  that  the  remedial  nature  of  the  statute  was  not  in- 
tended to  be  restricted  by  the  incident  of  the  residence  of  the 
beneficiary.^ 

Section  57.  Convict  Labor.  —  An  attempt  to  modify  com- 
petition with  local  labor,  and  specifically  with  free  labor,  is  made 
in  many  states^  by  laws  limiting  the  labor  of  convicts  to  the 
manufacture  of  supplies  for  the  use  of  the  state  or  to  labor  on 
public  works  and  ways,  or  by  requirements  limiting  the  number 
of  convicts  that  shall  be  employed  in  the  manufacture  of  desig- 
nated articles  or  classes  of  articles,  or  prohibiting  the  manufac- 
ture of  certain  kinds  of  goods  altogether,  by  forbidding  the  use 
of  any  machinery  in  manufacture  except  such  as  is  operated  by 
hand  or  foot  power,  and  by  requiring  that  convict-made  goods 
shall  be  so  marked,  or  that  dealers  in  them  shall  be  specially 
licensed.  Such  laws  are  not,  strictly  speaking,  labor  laws,  as 
they  affect  neither  employer  nor  employee  in  their  relations  to 
each  other,  but  are  of  an  economic  intent,  seeking  to  modify 
the  effects  of  the  competition  of  convict  with  free  labor.     In  so 

1  Deni  v.  P.R.  Co.,  181  Pa.  525, 37  Atl.  558 ;  McMillan  v.  Spider  Lake  S.  &  L. 
Co.,  115  Wis.  332,91  N.W.  979. 

*  Mulhall  V.  Fallon,  176  Mass.  266,  57  N.E.  386 ;  Alfson  v.  Bush,  182  N.Y. 
393,  75  N.E.  230  ;  Kellyville  Coal  Co.  v.  Petraytis,  195  111.  215,  63  N.E.  94  ;  Low 
Moor  Iron  Co.  v.  Bianca's  Adm'r.,  106  Va.  83,  55  S.E.  532;  Renlund  v.  Mining 
Co.,  89  Minn.  41,  93  N.W.  1057. 

'  111.,  R.S.,  ch.  108;  Minn.,  R.L..  sees.  5446-5449  ;  N.Y.,  Con.  L.,  ch.  31,  art. 
13;  Ohio,  A.S.,  sees.  7388-85,  4400-1  to  4400-10;   Mass.,  R.S.,  ch.  225,  etc. 


RESTRICTIONS  ON  EMPLOYEES  123 

far  as  they  relate  only  to  the  employment  and  management  of 
convicts  as  laborers,  the  public  has  no  grounds,  as  a  rule,  for 
intervening;  but  where  the  rights  of  citizens  are  affected,  as 
by  restrictions  on  the  sale  of  goods  purchased  from  prison  manu- 
factories, or  made  in  prisons  under  contract,  a  question  as  to 
restrictions  on  commerce  arises.  This  is  particularly  the  case 
where  the  goods  are  transported  outside  the  state  of  manufac- 
ture, and  thus  acquire  a  status  as  articles  of  interstate  commerce, 
which  is  strictly  and  exclusively  under  the  control  of  the  federal 
government.  It  was  on  this  basis  that  laws  of  New  York  ^  and 
Ohio,2  discriminating  against  goods  of  prison  manufacture, 
were  declared  unconstitutional.' 

>  Acts  1894,  ch.  698  ;  Acts  1896,  ch.  931.  »  Acts  1894,  p.  346. 

'  People  V.  Hawkins,  85  Hun.  43, 32  N.  Y.  Supp.  624  ;  same  case,  157  N.Y.  1, 51 
N.E.  257  ;  Arnold  v.  Yanders,  56  Ohio  St.  417,  47  N.E.  50. 


CHAPTER  VII 

THE  LIABILITY  OF  EMPLOYERS   FOR  INJURIES  TO  THEIR 
EMPLOYEES 

Section  58.  What  Law  Controls.  —  Although  the  English 
common  law  lies  at  the  foundation  of  our  doctrine  of  employers' 
liability,  this  doctrine  is  continually  undergoing  change,  both 
by  the  rulings  of  state  and  federal  courts  and  by  the  enactment 
of  numerous  statutes  passed  with  a  view  to  a  more  exact  defi- 
nition of  the  rights  of  the  employee  or  to  some  amehoration  of 
his  condition  in  other  respects.  The  principles  of  the  common 
law  are  so  differently  interpreted  in  the  various  jurisdictions 
that  state  names  are  given  to  certain  applications  of  them,  in- 
dicative of  a  locally  recognized  view  which  is  not  in  accord  with 
the  generally  accepted  construction  of  the  law,  while  the  statutes 
range  in  form  and  effect  from  a  mere  restatement  of  the  common 
law  to  an  abrogation  of  it  in  some  more  or  less  inclusive  degree, 
and  the  enactment  of  rules  varying  considerably  both  from  it 
and  from  the  statutes  of  other  states. 

Section  59.  Duty  of  the  Employer  to  Exercise  Care.  —  The 
two  principal  factors  of  the  problem  of  liability  are  the  duty  of 
the  employer  to  protect  his  employee  in  the  discharge  of  the 
duties  of  his  employment,  and  the  assumption  by  the  employee 
of  the  risks  involved  in  the  undertaking  in  which  his  contract 
of  employment  engages  him.     The  duty  of  the  employer  is  first 

124 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES  125 

considered,  but  it  will  be  found  impossible  to  discuss  it  without 
constantly  bearing  in  mind  the  modifications  that  result  from 
the  existence  of  the  complementary  obligations  that  rest  upon 
the  employee. 

The  briefest  statement  of  the  rule  governing  the  employer  is 
that  he  is  required  to  use  due  care  for  the  safety  of  his  employees 
while  they  are  engaged  in  the  performance  of  their  work.  This 
is  taken  to  include  all  reasonable  means  and  precautions,  the 
facts  in  each  particular  case  being  taken  into  consideration.  If 
such  provisions  have  been  made  as  a  reasonably  prudent  man 
would  supply  if  he  himself  were  exposed  to  the  dangers  of  the 
servant's  position,  no  negligence  would  appear.  In  the  case  of 
corporations  the  Supreme  Court  fixes  the  duty  at  the  use  of  such 
caution  and  foresight  as  a  corporation  controlled  by  careful, 
prudent  officers  ought  to  exercise.^ 

Though  the  courts  of  review  have  condemned  any  instruc- 
tions that  would  tend  to  charge  the  employer  with  a  higher 
degree  of  care  than  that  which  may  be  defined  as  ordinary,  the 
measure  is  not  an  absolute  one,  but  is  proportioned  to  the 
dangers  to  which  the  employee  is  exposed.  The  ordinary  in- 
cidents of  railroading,  mining,  and  certain  classes  of  manufac- 
turing are  in  themselves,  in  comparison  with  general  employ- 
ments, unusually  dangerous;  and  so  of  a  large  railroad  yard 
as  compared  with  a  smaller  one,  an  express  train  as  compared 
with  a  freight  train,  or  a  gaseous  mine  with  one  in  which  no  such 
dangers  exist.  In  such  cases  as  these,  or  when  temporarily 
abnormal  conditions  prevail,  ordinary  care  is  advanced  far 
beyond  the  requirements  of  the  less  dangerous  conditions.  As 
stated  by  the  Supreme  Court  in  a  consideration  of  this  question, 

»  Wabash  R.  Co.  v.  McDaniels,  107  U.S.  454.  2  Sup.  Ct.  932. 


126  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

occupations,  no  matter  how  important,  if  necessarily  dangerous, 
should  be  prosecuted  only  after  the  adoption  of  all  reasonable 
precautions  known  to  science.  The  necessary  attendant  danger 
should  operate  as  a  prohibition  to  the  prosecution  of  such  under- 
takings without  such  safeguards,  and  the  neglect  to  provide  all 
known  and  readily  obtainable  appliances  will  be  regarded  as  a 
proof  of  culpable  negligence.^  On  the  other  hand,  care  may 
lawfully  be  relaxed  if  the  risk  is  unusually  slight  or  if  a  device 
is  for  a  specific  and  transitory  use.  The  general  rule  as  to  care 
is  qualified  by  the  youthfulness  or  inexperience  of  an  employee, 
a  greater  degree  of  care  being  commonly  required  for  the  pro- 
tection of  such  persons ;  nor  is  the  master  relieved  by  the  fact 
that  a  servant  of  tender  years  misrepresented  his  age  in  order  to 
secure  the  employment.^ 

Section  60.  Place  and  Instrumentalities.  —  In  accordance 
with  the  rule  as  to  due  care,  the  obligation  rests  on  the  master 
to  supply  tools  and  appHances  that  are  reasonably  safe  for  the 
intended  use  and  reasonably  well  adapted  to  perform  the  work 
in  contemplation.  These  must  be  provided  at  the  place  of  use, 
or  at  a  place  of  such  ease  of  access  as  to  be  reasonably  procur- 
able. 

Closely  related  is  the  duty  to  provide  a  safe  place  to  work  and 
proper  material  for  use,  the  measure  still  being  not  absolute,  but 
reasonable  or  adequate  safety.  The  distinction  between  place 
and  appliance  is  not  an  easy  one  to  draw,  though  the  courts  are 
stricter  in  their  requirements  as  to  the  former  than  to  the  latter. 
Thus,  if  a  scaffold  furnished  by  an  employer  be  regarded  as  a 
place  to  work,  he  is  responsible  not  only  for  the  materials  sup- 

1  Mather  v.  RiUston,  156  U.S.  391,  15  Sup.  Ct.  464. 

*  Am.  Car  &  Foundry  Co.  v.  Armentraut,  214  111.  509,  73  N.E.  766. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES  127 

plied,  but  also  for  the  construction  and  maintenance ;  while  if 
it  be  viewed  only  as  an  appliance,  he  must  make  reasonable 
provision  therefor;  but  its  insufficiency,  if  such  there  be,  may  be 
laid  to  the  account  of  the  fellow  workmen  of  an  injured  em- 
ployee, or  perhaps  to  his  own  negligence  in  erection.^ 

The  doctrine  that  the  employer  is  bound  to  safeguard  his 
employees  from  exposure  to  needless  and  unreasonable  risks  is 
subject  to  the  general  qualification  that  one  has  the  right  to 
carry  on  a  business  which  is  dangerous,  either  in  itself  or  be- 
cause of  the  manner  in  which  it  is  conducted,  provided  it  does 
not  interfere  with  the  rights  of  others,  without  incurring  liability 
to  a  servant  who  is  capable  of  contracting  and  who  knows  the 
dangers  attendant  on  employment  in  the  circumstances.^  A 
brief  statement  of  the  rule  is  that  the  employer  has  a  right  to 
exercise  a  reasonable  judgment  and  discretion  in  the  conduct 
of  his  affairs,  and  it  is  said  that  it  would  be  a  very  extraordinary 
case  indeed  in  which  this  right  would  be  interfered  with.'  This 
does  not,  however,  permit  the  use  of  unreasonably  dangerous 
appliances  nor  those  which  are  in  themselves  defective  or  so 
obsolete  and  inferior  that  their  adoption  or  retention  would  of 
itself  indicate  negligence,''  though  the  question  is  held  to  be  one 
not  of  comparative  safety,  but  of  reasonable  safety.  No  fixed 
rule  of  liability  is  possible,  therefore,  in  this  respect,  each  case 
being  of  necessity  decided  on  its  own  merits. 

Section  61.  Standards  of  Care  Fixed  by  Statute.  — Where  a 
standard  is  fixed  by  statute,  as  for  the  safeguarding  of  the  opera- 

»  Butler  V.  Townsend,  126  N.Y.  105,  26  N.E.  1017  ;  Hovcland  v.  National 
niowor  Works.  134  Wis.  342,  114  N.W.  795. 

»  Tuttle  V.  Detroit,  etc.,  Ry.,  122  U.S.  189,  7  Sup.  Ct.  1166. 

'Tuttlc  V.  Detroit,  etc.,  Ry.,  supra. 

*  Choctaw,  O.  &  G.  R.  Co.  v.  McDade,  191  U.S.  64,  24  Sup.  Ct.  24. 


128  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

tions  of  mining,  the  provision  and  maintenance  of  fire  escapes, 
of  guards  for  dangerous  machinery,  or  of  safety  couplers  and 
other  devices  and  appliances  on  railway  trains,  railroads,  etc., 
the  violation  of  such  statutes  resulting  in  the  injury  of  any 
person  entitled  to  be  protected  thereby  is  construed  by  the 
better  authority  to  be  an  act  of  negligence,  though  it  is  some- 
times held  to  be  only  evidence  of  negligence.^  That  the  failure 
to  comply  with  the  statute  is  negligence  would  seem  hardly  to 
be  disputable,  since,  as  was  said  in  the  Mosgrove  case  cited 
above,  "every  person,  while  violating  an  express  statute,  is  a 
wrongdoer,  is  ex  necessitate  negligent  in  the  eyes  of  the  law"; 
or,  as  an  English  judge  phrased  the  same  rule,  "where  an  abso- 
lute duty  is  imposed  on  a  person  by  statute,  it  is  not  necessary, 
in  order  to  make  him  liable  for  breach  of  that  duty,  to  show 
negHgence." 

In  a  number  of  cases,  the  laws  making  such  requirements 
provide  in  terms  that  a  failure  to  comply  therewith  makes  an 
employer  hable  in  damages  for  all  injuries  caused  by  such  fail- 
ure, which  is  but  a  declaration  of  the  rule  laid  down  in  the  quo- 
tations given  above.  In  other  cases  the  statute  only  provides  a 
penalty  for  its  violation,  and  does  not  in  terms  give  an  injured 
employee  a  right  of  action,  though  the  injury  may  be  traceable 
to  the  omission  of  the  device  prescribed  by  the  law.  The  weight 
of  authority  gives  a  right  of  action  in  such  cases.^  According 
to  the  rule  of  common  law  that  the  employee  does  not  assume 

1  Compare  Mosgrove  v.  Zimbleman  Coal  Co.,  110  Iowa  169,  81  N.W.  227; 
Krause  v.  Morgan,  53  Ohio  St.  26,40  N.E.  886 ;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Taylor,  210  U.S.  281,  28  Sup.  Ct.  616,  with  Pitcher  v.  New  York,  etc.,  R.  Co., 
127  N.Y.  678,  28  N.E.  136  ;  Jupiter  Coal  Min.  Co.  v.  Mercer,  84  111.  App.  96. 

»  Harrod  v.  Latham,  77  Kans.  466,  95  Pac.  11 ;  Freeman  v.  Paper  Mill  Co.,  61 
Hun   125,  15  N.Y.  Supp.  657  ;  Klatt  v.  Lumber  Co.,  97  Wis.  641,  73  N.W.  503. 


LIABILITY  OP  EMPLOYERS  FOR  INJURIES  129 

the  risk  of  his  employer's  negligence,^  it  would  follow  that  in  a 
suit  for  damages  where  a  statute  had  been  violated,  the  em- 
ployer would  be  debarred  from  pleading  that  the  employee  had 
assumed  the  risk  of  the  injury,  and  it  has  been  so  held,^  though 
not  uniformly.'  Here  again  statutes  have  been  enacted  in 
support  of  what  appears  to  be  the  better  rule,  and  the  employer 
violating  the  statute  cannot  plead  assumption  of  the  risk  by  the 
injured  employee/  It  has  even  been  held  that  the  negligent 
employer  could  not  offer  to  prove  that  the  employee  was  guilty 
of  contributory  negligence,^  and  this  doctrine  too  has  been 
enacted  into  law  in  a  few  instances.® 

Compliance  with  statutory  regulation  will  not  operate  as  a 
defense  where  the  conditions  are  still  so  dangerous  as  to  support 
a  charge  of  negligence  against  the  employer.''  On  the  same 
basis,  it  has  been  held,  where  the  statute  prescribes  the  condi- 
tion in  which  a  working  place  is  to  be  maintained,  that  it  is  not 
sufficient  that  the  employer  has  put  the  matter  into  the  hands 
of  a  subordinate  to  attend  to,  but  he  must  perform  or  have 
performed  the  specific  thing  required  by  the  statute  if  the 
charge  of  negligence  is  to  be  avoided.* 

»  See  sec.  72. 

»  Davis  V.  Mercer  Lumber  Co.,  164  Ind.  413,  73  N.E.  899 ;  Landgraf  r.  Kuh, 
188  111.  484.  59  N.E.  501 ;  Jones  v.  Caramel  Co.,  225  Pa.  644.  74  .A.tl.  613. 

•Bodell  V.  Brazil  Block-Coal  Co.,  25  Ind.  App.  654,  58  N.E.  856;  Sutton  v. 
Bakery  Co.,  135  Iowa  390,  112  N.W.  836;  Knisley  v.  Pratt,  148  N.Y.  377.  42 
N.E.  986. 

•  Iowa,  Acts  1907,  ch.  181 ;  Ohio,  Gen.  Code,  sec.  6243  ;  N.Y.,  Acts  1910,  ch. 
352 ;  also  provisions  restricted  in  application  to  the  statutes  containing  them,  in 
many  other  states. 

»  Kellyville  Coal  Co.  v.  Strine,  217  111.  516,  75  N.E.  375. 

•  III.,  Acts  1905,  p.  350,  sec.  9 ;  Miss.,  Code,  sec.  4051 ;  Mo.,  Acts  1907,  pp. 
181,  182. 

'  Chesapeake  &  O.R.  Co.  v.  Rowscy's  Adm'r.,  108  Va.  632,  62  S.E.  363. 

•  Sommcr  v.  Carbon  Hill  Coal  Co.,  89  Fed.  54. 

K 


130  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

Section  62.  Repair  and  Maintenance.  —  The  same  care  is 
required  of  the  master  in  maintaining  as  in  furnishing  safe  and 
suitable  appliances.^  Inasmuch,  however,  as  the  progress  of 
work  and  the  use  of  tools  produce  constantly  changing  condi- 
tions, the  doctrine  that  reasonably  safe  places  and  appliances 
must  be  provided  is  frequently  modified  by  the  statement  that 
the  duty  has  been  discharged  when  ordinary  or  reasonable  care 
has  been  exercised  in  the  effort  to  make  such  provision.^  The 
continued  employment  of  tools  that  are  so  worn  as  to  increase 
the  danger  of  their  use  will  in  general  entail  Hability  on  the 
employer.  If,  however,  the  danger  is  an  obvious  one,  the  em- 
ployee, continuing  to  work  with  a  knowledge  of  the  danger  and 
without  complaint,  will  be  considered  to  have  assumed  the  risk, 
and  in  case  of  injury  has  no  recovery;  nor  will  liability  attach 
until  the  employer  has  or  reasonably  could  have  information  of 
the  defect  requiring  repair. 

An  important  decision  by  the  Supreme  Court  puts  at  rest  a 
question  on  which  opinions  differed,  i.e.,  as  to  the  standard  of 
care  to  be  exercised  in  cases  where  a  statutory  duty  was  pre- 
scribed. It  had  been  held  that  the  common  law  rule  was  not 
superseded  by  the  federal  statute  providing  for  the  equipment 
and  maintenance  of  safety  couplers  on  railroad  cars,  the  court 
ruling  that  the  use  of  reasonable  and  ordinary  care  and  diligence 
relieved  the  employer,^  while  in  another  case  in  which  the  same 
law  was  under  consideration,  it  was  ruled  that  the  duty  of  keep- 
ing the  appliances  in  order  was  an  absolute  one,*  a  view  that  was 

1  Moore  v.  Wabash,  St.  L.  &  P.  R.  Co.,  85  Mo.  588. 

« Anderson  v.  Michigan  C.  R.  Co.,  107  Mich.  591,  65  N.W.  585;  Reed  v. 
Stockmyer,  20  C.  C.  A.  381,  74  Fed.  186. 

s  Missouri  P.  R.  Co.  v.  Brinkmeier,  77  Kans.  14,  93  Pac.  621. 

*  Delk  V.  R.  Co.    See  St.  Louis,  etc.,  R.  Co.  v.  Delk,  158  Fed.  931, 934  (C.  C.  A.). 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES  131 

rejected  by  the  appellate  court.  A  similar  case  reached  the 
Supreme  Court,  where  it  was  held  that  the  duty  was  an  absolute 
one,  and  that  deviation  from  the  standard  was  negligence,  the 
rule  of  "reasonable  care"  having  been  abrogated  by  the  statu- 
tory requirement  as  to  adjustment  and  repair.^ 

Section  63.  Customary  Method  or  Use.  —  The  employer  is 
not  Uable  to  an  employee  for  an  injury  incurred  by  a  departure 
from  the  customary  method  of  performing  work  or  by  leaving 
the  place  of  his  employment  to  work  in  some  other  department 
unless  on  instructions  from  a  properly  authorized  representa- 
tive.^ So  if  a  more  dangerous  method  or  place  of  work  is  chosen 
when  one  less  dangerous  was  available,  the  resultant  injury,  if 
any,  does  not  charge  the  employer  with  liability.'  The  same 
rule  applies  where  an  instrumentality  is  put  to  a  different  use 
by  the  employee  from  that  for  which  it  was  intended,  with  a 
resultant  injury  to  himself.* 

Section  64.  Inspection.  —  The  duty  of  making  repairs  nec- 
essarily involves  the  duty  of  discovering  the  need  for  them  as  it 
may  arise,  which  entails  the  duty  of  inspection.  The  inspection 
required  for  maintenance  differs  somewhat  from  that  necessary 
or  presumed  at  the  time  a  new  plant  or  new  tools  are  first  brought 
into  use.  As  to  the  latter,  it  may  first  be  stated  that  an  em- 
ployer who  makes  and  supplies  an  instrumentality  is  chargeable 
with  such  a  knowledge  of  its  defects  as  ordinary  care  during  the 
course  of  such  manufacture  would  have  disclosed.  In  case  of 
purchase,  the  duty  of  inspection  may  ordinarily  be  assumed  to 
have  been  discharged  by  the  manufacturer,  though  a  showing 

>  St.  Louis.  I.  M.  &  S.  R.  Co.  v.  Taylor,  210  U.S.  281.  28  Sup.  Ct.  616. 
»  Stagg  V.  Edward  Western  Tea  &  Spice  Co..  169  Mo.  489,  69  S.W.  391. 
»  Wormell  v.  Maine  C.  R.  Co..  79  Me.  397.  10  Atl.  49. 
*  McKay  v.  Hand,  168  Mass.  270,  47  N.E.  104. 


132  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

that  the  purchase  was  carelessly  made  (as,  for  instance,  without 
indicating  to  the  manufacturer  the  intended  use,  so  that  he 
might  make  tests  appropriate  to  such  use)  has  been  held  to 
imply  negligence.  If  an  article  is  of  an  approved  pattern,  and 
the  dealer  is  a  reputable  one,  the  presumption  is  in  favor  of  the 
employer's  non-liability.^  The  doctrine  does  not  control  every- 
where, however,  cases  being  found  in  which  it  was  held  to  be  the 
duty  of  the  employer  to  cause  a  thorough  inspection  of  newly 
purchased  articles  before  putting  them  into  use.^  In  favor  of 
this  view  is  the  fact  that  it  accords  with  the  doctrine  of  non- 
delegable duties,  discussed  below,  and  that  it  alone  affords  pro- 
tection to  the  employee  where  there  has  been  actual  negligence 
on  the  part  of  the  manufacturer,  with  whom  he  has  no  contrac- 
tual relations. 

The  necessity  for  inspection  of  instrumentalities  in  use  ob- 
viously varies  with  the  nature  of  the  appliance  and  the  cir- 
cumstances of  employment.  Small  and  simple  tools  may  be 
used  without  inspection,  the  employer  being  entitled  to  assume 
that  the  workmen  will  make  timely  discovery  of  defects  and  be 
suitable  judges  of  the  fitness  of  such  tools  for  use.  Complex 
or  dangerous  machinery  or  instrumentalities  that  are  liable  to 
rapid  wear  or  deterioration  must,  on  the  other  hand,  be  the 
subjects  of  inspections  of  a  nature  and  frequency  adapted  to 
the  conditions  indicated. 

The  duty  does  not  extend  beyond  a  reasonably  careful  inspec- 
tion, though  no  defect  will  be  considered  latent  which  may  be  dis- 
covered by  the  exercise  of  due  care.     The  taking  apart  of  ma- 

»  Reynolds  v.  Merchants'  Woolen  Co.,  168  Mass.  501,  47  N.E.  406.  But  see 
Erickson  v.  Am.  Steel  &  W.  Co.,  193  Mass.  119,  78  N.E.  761. 

»  Morton  v.  Detroit,  etc.,  R.  Co.,  81  Mich.  423,  46  N.W.  Ill ;  Richmond  & 
D.  R.  Co.  V.  EUiott,  149  U.S.  266,  13  Sup.  Ct.  837. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES  133 

chinery,  or  such  other  inspection  as  would  interfere  with  the 
profitable  conduct  of  business,  is  not,  in  general,  required.^ 
External  appearances,  however,  may  be  such  as  to  demand  a 
more  thorough  inspection ;  ^  so,  also,  of  appliances  showing 
defects  in  operation  or  those  to  which  some  accident  has  oc- 
curred of  a  nature  Ukely  to  cause  obscure  injuries  to  machinery, 
which  may  subsequently  give  rise  to  accidents.^ 

In  many  states  coal  mines,  factories,  stationary  steam  boilers, 
and  in  some,  locomotive  boilers  and  railroad  equipment,  are 
subjects  of  inspection  at  the  hands  of  officials  appointed  by  the 
state.*  Although  some  of  these  requirements  have  regard  to  the 
safety  of  the  public  as  well  as  to  that  of  the  employees,  they  are 
valuable  as  fixing  standards  which  must  be  observed,  and  non- 
compliance with  an  inspector's  orders  is  negligence  if  an  employee 
is  injured  by  reason  thereof/  According  to  the  better  view, 
assumption  of  risks  cannot  be  pleaded  as  a  defense,  since  the 
employee  has  a  right  to  presume  that  his  employer  has  per- 
formed his  prescribed  duty/  Failure  to  comply  with  an  in- 
spector's orders  is  a  penal  offense  in  IdahoJ 

The  fact  that  government  inspections  have  been  made  does 
not,  however,  excuse  the  employer  for  negligence  in  this  regard  ; ' 
nor  does  the  fact  that  the  employment  of  a  certified  overseer  or 
mine  boss  is  required  by  statute  serve  to  clear  the  employer  of 

>  Philadelphia  &  R.  R.  Co.  v.  Hughes,  119  Pa.  301,  13  Atl.  286. 

2  Hall  V.  Emerson-Stevens  Mfg.  Co.,  94  Me.  445,  47  Atl.  924. 

'  Mooney  v.  Connecticut  River  Lumber  Co.,  154  Mass.  407,  28  N.E.  352. 

*  See  Chapter  4. 

«  Andricus"  Adm'r.  t>.  Coal  Co.,  28  Ky.  704,  90  S.W.  233. 

•  Foley  V.  Pioneer  Mining,  etc.,  Co.,  144  Ala.  178,  40  So.  273. 
'Code,  sec.  4761. 

»  O'Connor  v.  Armour  Packing  Co.,  168  Fed.  241  (C.C.A.).  See  N.Y.,  C.L., 
ch.  49,  sec.  73. 


134  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

responsibility  for  his  negligent  conduct.^  The  reverse  has 
been  held,  however,^  though  it  cannot  be  regarded  as  other  than 
an  erroneous  view  of  the  law,  and  it  may  be  precluded  by  a 
declaration  embodied  in  the  statute  to  the  effect  that  the  certi- 
fied employee  is  to  be  regarded  as  the  personal  representative 
of  the  employer.' 

Section  65.  Ownership  of  Appliances.  —  The  duty  of  inspec- 
tion above  considered  assumes  the  ownership  of  both  appliances 
and  premises  to  be  in  the  employer.  Where  ownership  is  divided 
various  distinctions  exist,  based  on  the  relations  of  the  employer 
and  the  owner  of  the  premises  or  instrumentality.  The  most 
important  of  this  class  of  cases  are  perhaps  those  in  which  is 
involved  the  handling  by  railroad  companies  of  cars  belonging 
to  other  companies.  Such  cars,  known  in  railroading  as  "for- 
eign" cars,  although  received  only  temporarily  for  purposes  of 
transportation,  are  as  completely  identified  with  the  employer's 
plant  as  if  the  transfer  was  made  by  purchase,  so  that  the  nature 
of  the  obhgations  arising  therefrom  differs  from  that  existing  in 
cases  where  the  employer's  lack  of  control  over  the  appUance  is 
usually  held  to  exempt  him  from  liability.* 

In  the  first  place,  it  may  be  said  that  no  railway  company  is 
obliged  to  receive  and  turn  over  to  be  handled  by  its  employees 
any  defective  or  dangerous  car.^  Every  company  is  under  a 
legal  duty  not  to  expose  its  employees  to  dangers  arising  from 

1  Consol.  Coal  Co.  v.  Seniger,  179  111.  370,  53  N.  E.  733  ;  Fulton  v.  Wilmington 
Star  Min.  Co.,  133  Fed.  193  (CCA.) ;  Antioch  Coal  Co.  v.  Rockey,  169  Ind.  247, 
82  N.E.  76. 

2  Durkin  v.  Kingston  Coal  Co.,  171  Pa.  193,  33  Atl.  237 ;  Williams  v.  Thacker 
Coal  &  Coke  Co.,  44  W.  Va.  599,  30  S.E.  107. 

'  Tenn.,  Acts  1907,  ch.  540. 

*  Baltimore  <fe  P.  R.  Co.  v.  Mackey,  157  U.S.  72,  15  Sup.  Ct.  491. 

»  Gottleib  V.  R.  Co.,  100  N.Y.  462,  3  N.E.  344. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         135 

such  defects  of  foreign  cars  as  may  be  discovered  by  reasonable 
inspection  before  such  cars  are  received  into  its  train.  This 
inspection  is  such  a  one  as  the  company's  own  cars  would  receive 
while  in  use,  and  not  a  shop  inspection.  The  shortness  of  the 
time  during  which  the  foreign  car  is  in  the  hands  of  a  company 
is  not  an  excuse  for  neglecting  the  duty.* 

Where  danger  from  the  use  of  foreign  cars  arises,  not  from 
defective  equipments,  but  from  differences  of  construction,  it 
has  been  generally  held  that  the  servant  assumes  the  obvious 
risks  thus  arising,  but  if  he  is  ignorant  of  the  risk,  a  right  of 
action  accrues.  It  may  be  noted,  however,  that  the  statutory 
requirement  as  to  automatic  couplers  is  not  met  unless  the 
various  kinds  brought  together  will  actually  couple  by  impact, 
the  mere  fact  that  they  will  so  couple  when  used  with  others  of 
the  same  make  not  being  a  sufficient  compliance  with  the  federal 
statute.' 

Section  66.  Working  Force.  —  Besides  the  duty  to  use  care 
in  regard  to  instrumentalities,  the  employer  must  also  be  rea- 
sonably and  properly  careful  and  diligent  to  see  that  each  em- 
ployee hired  by  him  has  such  qualifications  as  will  enable  him 
to  perform  his  duties  without  greater  risk  to  himself  and  his 
co-employees  than  the  nature  of  the  business  involves;  and 
that  a  sufficient  number  is  provided  for  a  reasonably  safe  per- 
formance of  the  work. 

The  disqualifications  of  persons  of  suitable  age  may  be  mental, 
moral,  or  physical,  the  most  common  being  those  that  arise 
from  the  intemperate  use  of  intoxicants,  though  habitual  care- 
lessness or  recklessness,  such  as  may  reasonably  come  to  the 

«  Atchison,  T.  &  S.  F.  R.  Co.  r.  Penfold.  57  Kans.  148,  45  Pac.  574. 
*  JohnBon  v.  Southern  P.  R.  Co..  196  U.S.  1,  25  Sup.  Ct.  158. 


136  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

knowledge  of  the  employer,  likewise  charges  him  with  liability. 
The  element  of  knowledge,  either  actual  or  constructive,  is  an 
essential  one.  A  plaintiff  grounding  his  claim  on  the  negligence 
of  the  employer  in  hiring  an  incompetent  coservant  must  prove, 
not  only  the  incompetence,  but  also  that  the  employer  failed  of 
proper  care  and  diligence  in  the  original  hiring  or  in  subsequent 
inquiry  as  to  incompetency  of  which  notice  was  given  during 
the  term  of  service.^ 

Section  67.  Rules.  —  Another  branch  of  the  employer's  duty 
is  that  of  providing  appropriate  rules  and  securing  the  carrying 
out  of  a  suitable  system  for  the  conduct  of  his  work.  This 
applies  only  to  business  sufficiently  complex  to  make  such  ar- 
rangements reasonable,  and  no  such  assumption  is  made  as  that 
rules  can  be  so  framed  as  to  guard  against  every  contingency. 
Such  rules  and  practices  as  are  prescribed  must  be  brought  to 
the  knowledge  of  the  employee  before  he  is  considered  to  be 
bound  by  them,  but  it  may  be  inferred  from  circumstances  that 
this  has  been  done.  Express  contracts  with  reference  to  the 
conditions  of  employment  as  affected  by  specified  rules  are 
conclusive  as  against  an  employee  professing  ignorance  of  such 
rules ;  ^  but  a  mere  agreement,  though  in  writing,  to  study  the 
rules  and  keep  posted  on  them  is  appHcable  only  to  such  rules 
as  have  been  duly  promulgated  or  which  the  employer  has 
definitely  undertaken  to  bring  to  the  employee's  knowledge.^ 

Enforcement  of  rules  is  no  less  a  duty  than  the  promulgation 
of  rules  in  so  far  as  a  reasonably  careful  supervision  will  accom- 
plish it.     Repeated  and  notorious  violations  will  charge  the 

» Indiana,  B.  &  W.  R.  Co.  v.  Dailey,  110  Ind.  75,  10  N.E.  631. 

»  Sedgwick  v.  Illinois  C.  R.  Co.,  73  Iowa  158,  34  N.W.  790. 

»  Carroll  v.  East  Tennessee,  V.  &  G.  R.  Co.,  82  Ga.  452.  10  S.E.  163. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES  137 

employer  with  a  knowledge  of  the  insufficiency  of  the  provisions 
made  and  the  necessity  of  new  regulations  or  of  additional  su- 
perintendence. In  the  absence  of  steps  to  secure  the  enforcement 
of  rules  thus  violated,  it  has  been  frequently  held  that  the  master 
has  sanctioned  their  abrogation  and  that  they  are  no  longer 
binding.  Their  violation  would  not  then  be  regarded  as  neg- 
ligence, nor  could  the  employer  offer  such  rules  as  a  defense.^ 

In  a  few  jurisdictions  the  adoption  and  promulgation  of  rules 
for  railroad  employees  are  the  subject  of  statutory  requirement ;  "^ 
while  in  some,  at  least  partial  codes  of  mine  rules  have  been 
enacted.' 

Section  68.  Instructions  and  Warnings.  —  Besides  the  gen- 
eral rules  by  which  the  conduct  of  business  is  determined, 
instructions  may  be  necessary  in  case  either  of  abnormal  con- 
ditions or  of  the  employment  of  inexperienced  persons.  The 
principle  lying  at  the  foundation  of  this  duty  is  the  same  as  in 
the  case  of  providing  appliances,  viz.,  Uability  does  not  attach 
on  account  of  the  dangers  of  the  situation,  but  for  placing  the 
employee  in  a  situation  of  the  hazards  of  which  he  is  excusably 
ignorant.  There  is  no  legal  necessity  for  the  giving  of  instruc- 
tions or  warnings,  therefore,  where  the  employee's  knowledge 
as  to  conditions  and  means  of  safety  is  equal  to  that  of  the  em- 
ployer, nor  where,  all  the  circumstances  being  considered, 
adequate  knowledge  can  be  attributed  to  him.  A  modification 
of  this  rule  is  to  be  found,  however,  in  the  fact  that  it  is  not  a 
mere  knowledge  of  conditions,  but  a  comprehension  of  the 
dangers  attendant  thereon,  that  must  be  shown  in  order  to  ab- 

'  St.  Louis,  A.  &  T.  R.  Co.  v.  Triplett,  54  Ark.  289, 15  S.W.  831 ;  16  S.W.  266. 
» Ind.,  Acts  1907,  ch.  272  ;    Mirh..  C.L.,  sec.  6286. 

•Ariz..  Acts  1907,  ch.  72;  111.,  R.C.  ch.  93;  Md.,  Acta  1902,  ch.  124;  Pa., 
B.P.  Dig.  pp.  1340  et  seq.   « 


138  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

solve  the  master  from  responsibility.*  Misrepresentations  on 
the  part  of  the  employee  as  to  age  and  experience  have  been  held 
by  some  courts  to  relieve  the  master  of  the  duty  to  instruct,^ 
while  others  deny  such  effect.'  Regarding  the  duty  as  one  of 
"proper  care,"  it  would  seem  that  the  employer  cannot  be 
absolved  from  the  duty  of  disclosing  dangers  which  are  not  ob- 
vious by  any  statements  whatever  of  those  whom  he  may  em- 
ploy, though  the  circumstance  of  the  employee's  representations 
may  be  considered. 

Section  69.  Duties  Non-Delegable.  —  Considering  the  em- 
ployer's duties  as  matter  of  personal  obligation,  it  is  apparent 
that  directions  to  a  servant,  or  the  employment  of  persons  to 
perform  these  functions  in  the  employer's  stead,  will  not  in 
itself  relieve  him  of  the  responsibility ;  but  if  there  be  a  defective 
discharge  of  such  duties  by  the  person  employed  for  their  per- 
formance, the  employer  is  still  liable,  and  will  not  be  allowed  to 
screen  himself  behind  his  agent.  In  determining  the  question 
of  the  employer's  liability,  the  relations  of  fellow-servants  are 
involved,  or  rather  the  doctrine  of  vice-principals,  and  the  de- 
cision will  be  found  to  turn  largely  on  the  point  of  whether  the 
negligent  employee  was,  with  reference  to  the  act  occasioning 
the  injury,  a  co-employee,  or  whether  he  was  the  representative 
of  the  employer  in  that  particular  act. 

As  to  duties  prescribed  by  statute,  it  appears  to  be  the  rule 
that,  apart  from  an  express  legislative  declaration,  they  will  be 
classed  as  delegable  or  non-delegable  according  to  the  common- 
law  classification  of  such  duties. 

1  Coombs  V.  New  Bedford  Cordage  Co.,  102  Mass.  672,  3  Am.  Rep.  506. 
«  Steen  v.  St.  Paul  &  D.  R.  Co.,  37  Minn.  310,  34  N.W.  113. 
» Louisville  &  N.  R.  Co.  v.  Miller,  43  CCA.  436,  104  Fed.  124. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES  139 

Section  70.  Negligence.  —  The  non-performance  of  the 
duties  devolving  upon  the  employer,  when  it  results  in  injury  to 
an  employee,  renders  him  liable  to  a  charge  of  negligence.  This 
is  defined  as  being  "the  failure  to  do  what  a  reasonable  and 
prudent  person  would  have  done  under  the  circumstances  of 
the  situation,  or  the  doing  what  such  a  person  under  the  existing 
circumstances  would  not  have  done."  ^  It  is  not  necessary 
that  the  particular  injury  could  have  been  foreseen,  or  the  par- 
ticular manner  of  its  occurrence  anticipated,  but  only  that  the 
person  charged  might  reasonably  have  foreseen  that  injurious 
consequences  might  be  expected  from  his  act  or  omission. ^  The 
negligent  act  will  be  judged  by  the  exigencies  of  the  occasion. 
The  mere  fact  of  injury  is  not  proof  of  negligence ;  in  fact,  it  is 
said  that  it  does  not  even  carry  a  presumption  of  negligence.' 
The  matter  is  therefore  one  requiring  direct  proof,  unless  the 
conditions  are  so  obviously  dangerous  as  to  preclude  any  other 
inference  than  that  of  negligence.'*  The  burden  of  proof  is  there- 
fore generally  held  to  be  on  the  plaintiff,  though  it  has  been  held 
that  such  an  accident  as  a  collision  or  the  derailment  of  a  train 
raised  such  a  presumption  of  negligence  that  the  burden  was 
cast  on  the  railroad  company  of  proving  that  it  was  not  negli- 
gent.^ This  is  in  brief  the  effect  of  a  statute  of  Mississippi 
applicable  to  railroads.^ 

Section  71.  The  Defenses  of  Employers.  —  For  a  breach  of 
duty  to  an  employee  resulting  in  injury  an  action  will  lie  for  the 
recovery  of  damages.     Employers  are  not  insurers,  however, 

»  Baltimore  &  P.  R.  Co.  v.  Jones.  95  U.S.  439. 
«  Mobile,  J.  &  K.C.  R.  Co.  v.  Hicks,  91  Miss.  273.  46  So.  360. 
«  Patton  V.  Texas  P.  R.  Co.,  179  U.S.  658.  21  Sup.  Ct.  275. 
*  Stearns  v.  Ontario  Spinning  Co.,  184  Pa.  523,  39  Atl.  292. 
»  WriRht  V.  Southern  R.  Co..  127  N.C.  225,  37  S.E.  221.     See  also  Shuler  v. 
Omaha,  K.  C.  &  E.  R.  Co.,  87  Mo.  App.  618.  •  Code.  sec.  1985. 


140  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

and  are  liable  for  the  consequences,  not  of  danger,  but  of  neg- 
ligence. Some  duties  are  by  statute  made  obligatory  upon  the 
employer  to  such  an  extent  as  practically  to  fix  his  liability  in 
case  of  injuries  entailed  by  their  omission.  Apart  from  such 
enactments,  however,  the  employer  may,  in  case  of  an  action  for 
damages,  offer  a  defense  based  on  the  principle  expressed  in  the 
maxim,  "Volenti  non  fit  injuria";  or  he  may  undertake  to 
prove  the  plaintiff's  assumption  of  the  risk,  or  his  contributory 
negligence ;  or  he  may  rely  on  the  doctrine  of  common  employ- 
ment to  relieve  him  from  liability.^ 

The  principle  of  the  maxim,  "Volenti  non  fit  injuria,"  is  of 
general  application,  the  meaning  of  the  phrase  as  freely  ren- 
dered being,  "That  to  which  a  person  assents  is  not  esteemed  in 
law  an  injury."  A  clearer  statement  is  that  by  an  English 
judge,  "One  who  has  invited  or  assented  to  an  act  being  done 
toward  him  cannot,  when  he  suffers  from  it,  complain  of  it  as  a 
wrong."  In  a  Massachusetts  case  the  doctrine  was  thus  ex- 
pressed: "One  who  knows  of  a  danger  from  the  negligence  of 
another,  and  understands  and  appreciates  the  risk  therefrom 
and  voluntarily  exposes  himself  to  it,  is  precluded  from  recover- 
ing for  an  injury  which  results  from  the  exposure."  In  brief, 
the  injured  person  has  assumed  the  risk;  and,  apart  from  the 
contractual  relation  of  employer  and  employee,  there  is  a  con- 
siderable class  of  cases  in  which  this  defense  to  an  action  for 
damages  may  be  interposed.  The  invitation  or  assent  is  not 
necessarily  or  even  commonly  formal,  but  is  inferable  from 
conduct  and  conditions,  often  subsequent  to  the  entrance  upon 
the  situation  that  gives  rise  to  the  circumstances  to  which  the 
doctrine  is  applied. 

*  Mention  has  already  been  made  of  the  statutory  abrogation  of  these  de- 
fenses under  specified  conditions.     See  sec.  46. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         141 

Section  72.  Assumption  of  Risks.  —  When  a  contract  of 
employment  is  entered  upon,  the  law  imports  into  the  agreement 
an  assumption  by  the  employee  of  the  ordinary  risks  incident  to 
the  employment,  and  of  such  other  risks  as  may  be  known  and 
appreciated  by  him.  This  is  said  to  be  one  of  the  terms  of  the 
contract,  express  or  implied  from  the  circumstances  of  the  em- 
ployment.^ One  seeking  employment  impliedly  represents 
that  he  is  capable  therefor,  and  that  he  comprehends  the  ordi- 
nary risks.^  Another  view  of  the  defence  is  that  it  does  not  arise 
from  the  contract  of  employment,  but  from  the  status  of  em- 
ployer and  employee  as  fixed  by  common  law,  and  is  over  and 
above  the  contract,  being  imposed  by  law  upon  the  parties 
thereto,  regardless  of  their  desires.^  Courts  differ  as  to  whether 
or  not  the  employee  assumes  the  risks  of  his  employer's  negU- 
gence,  some  holding  that  he  does  if  such  negligence  is  known ;  * 
though  this  may  be  qualified  by  limiting  the  assumption  to 
cases  other  than  those  in  which  the  negligence  consists  in  a 
failure  to  comply  with  statutory  requirements  for  the  em- 
ployee's safety.^  Even  this  exception  has  been  specifically 
disallowed,  however,^  while  on  the  other  hand  it  has  been  broadly 
held  that  the  employee  never  assumes  the  risk  of  the  employer's 
negligence.^     "Prima  facie,   a  servant  does  not  assume  any 

'  Narramore  v.  Cleveland,  etc.,  R.  Co.,  96  Fed.  298,  37  CCA.  499. 

«  Wagner  v.  Chemical  Co.,  147  Pa.  475,  23  Atl.  772. 

>  Denver  &  R.  G.  R.  Co.  v.  Norgate,  141  Fed.  247;  Martin  v.  Chicago,  etc., 
R.  Co.,  118  Iowa  148,  91  N.W.  1034. 

*  Consol.  Min.  Co.  v.  Bateman,  176  Fed.  57  (CCA.)  ;  Labatt,  M.  &  S.,  sec. 
271,  cases  cited. 

»  Ft.  Wayne,  etc..  Traction  Co.  v.  Roudebush,  173  Ind.  57,  88  N.E.  676. 

« Knislcy  v.  Pratt,  148  N.Y.  377.  42  N.E.  986. 

7  Gagnon  v.  Machine  Co.,  174  Fed.  477  ;  George  r.  Railway  Co.,  225  Mo.  364, 
125  S.W.  196  ;  see  also  Hough  v.  Texas  &  P.  R.  Co.,  100  U.S.  213,  25  L.  Ed.  612 ; 
George  v.  Clark,  86  Fed.  608,  29  CCA.  374. 


142  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

risks  which  may  be  obviated  by  the  exercise  of  reasonable  care 
on  the  master's  part.  In  other  words,  the  abnormal,  unusual, 
or  extraordinary  risks  which  the  servant  does  not  assume  as 
being  incident  to  the  work  undertaken  by  him  are  those  which 
would  not  have  existed  if  the  master  had  fulfilled  his  contractual 
duties."  ^  It  is  doubtless  too  much  to  say,  in  view  of  the  rather 
numerous  exceptions  to  the  rule,  that  the  employee  never  as- 
sumes such  risks,  though  obviously  the  whole  doctrine  of  the 
liability  of  the  employer  for  injuries  to  his  employees  turns  on 
the  point  involved. 

The  question  of  the  employee's  knowledge  and  understanding 
is  in  general  controlling  in  the  matter  of  ordinary  risks,  and, 
where  the  exception  is  allowed,  in  the  matter  of  extraordinary 
risks  as  well.  The  knowledge  may  be  either  actual  or  imputed. 
A  workman  of  mature  years  and  ordinary  intelligence,  offering 
himself  for  employment,  is  presumed  to  know  and  appreciate 
the  conditions,  and  to  assume  the  risks  ordinarily  incident  to 
the  service  and  to  have  notice  of  all  risks  which,  to  one  of  his 
experience  and  capacity,  are,  or  ought  to  be,  open  and  obvious. 
He  does  not  assume  risks  arising  from  conditions  of  which  he  was 
actually  and  excusably  ignorant ;  nor  is  he  required  to  use  more 
than  ordinary  care  to  discover  existing  conditions.^ 

The  courts  have  sometimes  defined  ordinary  risks  as  those 
that  pertain  to  the  employment  after  the  employer  has  dis- 
charged his  duty  as  to  safe  place,  appliances,  etc.,  and  which 
ordinary  care  on  his  part  cannot  guard  against.  Under  another 
conception  the  word  "ordinary"  is  held  to  be  construed  in  its 
usual  sense.     This  may  be  taken  to  mean  either  that  the  risk  is 

»  Labatt,  M.  &  S.,  sees.  2,  270. 

*  Allen  V.  Boston  &  M.  R.  Co.,  69  N.H.  271,  39  Atl.  978 ;  Comben  t.  BeUe\'ille 
Stone  Co.,  59  N.J.L.  226,  36  Atl.  473. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         143 

so  obviously  a  normal  incident  of  the  employment  that  an  in- 
telligent observer  would  recognize  it  as  such,  and  the  dangers 
arising  therefrom  as  constantly  possible ;  or  it  may  imply  that 
the  employment  unavoidably  and  of  necessity  involves  the 
risks,  which  is  much  the  same  as  holding  that  the  master's  care 
cannot  obviate  them. 

These  risks  are  such  as  arise  from  the  negligence  of  fellow 
servants,  unless  the  employer  was  negligent  in  employing  in- 
competent workmen ;  or  from  the  nature  of  the  instrumen- 
talities used ;  or  from  the  conditions,  whether  permanent  or 
temporary,  of  the  conduct  and  nature  of  the  business. 

Risks  which  may  be  obviated  by  the  exercise  of  reasonable 
care  on  the  part  of  the  employer  are  classed  as  extraordinary, 
and  these  the  employee  is  held  not  to  have  assumed  without  a 
knowledge  and  comprehension  of  the  dangers  arising  from  the 
employer's  negligence.  If  the  dangers  are  patent  or  are  brought 
to  the  knowledge  of  an  employee,  his  entering  upon  or  remaining 
in  service  is  construed  as  a  waiver  of  any  claim  against  the  em- 
ployer for  resulting  damages.^  In  the  first  case  he  will  be  held 
to  have  made  his  contract  in  the  light  of  existing  conditions; 
and  as  to  risks  arising  during  employment,  it  has  been  said  that 
if  a  servant  continues  to  use  an  appliance  which  he  knows  to  be 
dangerous,  he  does  so  at  his  own  risk  and  not  at  that  of  his  em- 
ployer.* It  must  appear,  however,  that  the  risk  was  actually 
appreciated.  While  a  failure  to  notify  the  employer  of  dis- 
covered or  known  risks  is  construed  as  indicating  the  employee's 
willingness  to  continue  to  work  while  they  exist,  the  risk  is  not 
thrown  upon  the  employer  by  a  mere  notification  not  replied  to 

»  Tuttler.  Detroit.  G.  H.  A  M.  Ry..  122  U.S.  189,  7  Sup.  Ct.  1166. 
»  Washington  &  G.  R.  Co.  v.  McDade,  135  U.S.  554,  10  Sup.  Ct.  1044. 


144  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

by  his  promise  to  repair.*  If  the  alternative  of  continuing  to 
work  with  the  defective  appliance  or  of  leaving  the  employment 
is  offered,  and  the  employee  continues  to  work,  he  will  be  held 
to  have  assumed  the  risk.^  A  promise  to  repair  can  be  relied 
upon  only  for  a  reasonable  time,  after  which  the  risk  will  be 
upon  the  employee. 

Section  73.  Contracts  and  Rules  avoiding  Liability.  —  To  what 
extent  the  defense  of  assumption  of  risks  may  be  carried  is  a 
question  for  the  courts,  and  efforts  on  the  part  of  the  employer  to 
make  his  workmen  insurers  of  their  own  safety  by  the  adoption 
of  rules  or  the  requirement  of  contracts  releasing  the  employer 
from  liability  will  in  general  be  discountenanced.  Thus  it  has 
been  held  that  a  rule  which  required  an  employee  not  to  attempt 
to  use  appliances  unless  he  knew  that  they  were  in  a  proper 
condition  imposed  upon  the  servant  one  of  the  duties  of  the 
master,  i.e.,  that  of  seeing  that  the  implements  furnished  are  in 
a  reasonably  safe  state  of  repair;  and  such  rule  was  declared 
void.^  Nor  can  an  employer  by  his  rules  shift  to  the  em- 
ployee the  responsibility  placed  upon  himself  b}^  a  statute.*  A 
stipulation  exempting  a  railroad  company  from  liability  for 
injuries  caused  to  its  employees  by  its  negligence  is  void  as 
against  public  poHcy.^    A  contract  executed  subsequent  to  the 

1  East  Tennessee,  V.  &.  G.  R.  Co.  v.  Duffield,  12  Lea  63,  47  Am.  Rep.  319. 

*  Leary  v.  Boston  &  A.  R.  Co.,  139  Mass.  580,  2  N.E.  115.  But  see  Jewell  v. 
Bolt  &  Nut  Co..  231  Mo.  176,  132  S.  W.  703. 

'  Missouri,  K.  &  T.  R.  Co.  v.  Wood,  35  S.W.  879  (Tex.  Civ.  App.). 

<  Consol.  Coal  Co.  v.  Lundak,  196  111.  594,  63  N.E.  1079. 

»  Lake  Shore  &  M.  S.  R.  Co.  v.  Spangler,  44  Ohio  St.  471,  8  N.E.  467 ;  Little 
Rock,  etc.,  R.  Co.  v.  Eubanks,  48  Ark.  460,  3  S.W.  808  ;  Richmond  &  D.  R.  Co.  v. 
Jones,  92  Ala.  218,  9  So.  276  ;  Stone's  Adm'r.  v.  Union  P.  R.  Co.,  32  Utah  185,  89 
Pac.  715  ;  Johnson  v.  Charleston  &  S.  R.  Co.,  55  S.C.  152,  32  S.E.  2  ;  Roesner  v. 
Herman,  8  Fed.  782. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         145 

employee's  entrance  on  service,  relieving  the  employer  of  liabil- 
ity, has  been  held  void  for  want  of  consideration.^  In  another 
case,  in  a  lower  court  of  the  same  state  as  the  above,  a  contract 
of  like  import,  though  based  on  sufficient  consideration,  was 
declared  void  as  against  public  policy.^  As  was  said  in  the 
Roesner  case,  if  there  was  no  negligence,  there  was  no  need  of  a 
contract  to  exempt  the  defendant  from  liability ;  if  he  was  neg- 
ligent, the  contract  would  be  of  no  avail. 

It  has  been  held  that  an  employer  could  not  relieve  himself 
by  contract  of  a  liability  imposed  by  statute,  although  the 
statute  itself  made  no  reference  to  such  contracts.'  An  implied 
waiver  of  the  benefits  of  a  statute  which  requires  frogs  on  a 
railroad  to  be  blocked  or  dangerous  machinery  to  be  guarded, 
based  on  continuance  in  service  with  knowledge  that  the  law 
has  not  been  complied  with,  has  been  held  not  to  be  valid  as  a 
defense  in  an  action  for  injuries  resulting  from  the  employer's 
failure  to  comply  with  the  statute.''  There  is,  however,  a  strong 
list  of  cases  on  the  other  side.^  In  Georgia  ^  and  Pennsylvania/ 
express  contracts  limiting  or  denying  the  employee's  right  of 
action  have  been  upheld.  In  the  former  state  a  later  statute 
declares  such  contracts  void  in  so  far  as  they  affect  any  liability 

>  Purdy  V.  Rome,  etc.,  R.  Co.,  125  N.Y.  209,  26  N.E.  255. 
«  Runt  V.  Herring,  49  N.Y.  St.  126,  21  N.Y.  Supp.  244. 

'  Kansas  P.  R.  Co.  v.  Peavcy,  29  Kans.  169,  44  Am.  Rep.  630 ;  Tarbell  r. 
Rutland  R.  Co.,  73  Vt.  347,  51  Atl.  6. 

*  Narramore  >.  Cleveland,  etc.,  R.  Co.,  96  Fed.  298,  37,  CCA.  499 ; 
Davis  Coal  Co.  v.  Polland,  158  Ind.  607,  62  N.E.  492 ;  Western  Furniture  & 
Mfg.  Co.  V.  Bloom,  76  Kans.  127,  90  Pac.  821. 

'  Denver  &  R.  G.  R.  Co.  v.  Gannon.  40  Colo.  195.  90  Pac.  853 ;  St.  Louis 
Cordage  Co.  v.  Miller,  126  Fed.  495;  O'Maley  v.  South  Boston  Gas  Light  Co.,' 
158  Mass.  1.35,  32  N.E.  1119. 

•  Western  &  A.  R.  Co.  v.  Bishop,  50  Ga.  465. 
»  Mitchell  V.  Pa.  R.  Co.,  1  Am.  Law  Reg.  717. 

L 


146  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

fixed  by  statute.  Similar  or  more  general  statutes  exist  in  a 
majority  of  the  states,  and  such  a  provision  is  incorporated  in 
the  federal  liability  law  of  1908.  These  laws  have  received 
countenance  in  a  number  of  cases.^  In  the  Indiana  and  Iowa 
cases  cited,  it  was  necessary  to  decide  on  the  constitutionality 
of  this  particular  provision  of  the  state  statutes.  In  the  Mum- 
ford  case  the  clause  prohibiting  contracts  hmiting  liability  was 
held  applicable  to  a  provision  in  a  contract  of  employment  limit- 
ing the  time  within  which  actions  to  recover  damages  for  injuries 
might  be  brought,  the  provision  being  condemned  as  contrary 
to  law.  In  the  Quinn  case  it  was  held  that  the  statute  was 
not  contravened  by  an  agreement  in  the  contract  of  employ- 
ment by  which  the  employee  undertook  to  make  a  careful  ex- 
amination of  the  place  of  work  so  that  he  might  understand  its 
dangers. 

Section  74.  Relief  Benefits.  —  Where  the  feature  of  relief 
benefits  exists,  a  new  factor  is  introduced,  and,  apart  from  stat- 
utes declaring  a  contrary  doctrine,  the'  ruHngs  of  the  courts  are 
quite  uniform  in  favor  of  the  contract.  It  is  generally  provided 
that  the  acceptance  of  benefits  by  the  injured  employee  shall 
operate  as  a  waiver  of  his  right  of  action  at  law  against  his  em- 
ployer, and  that  if  action  is  brought  and  is  compromised  or 
carried  to  judgment,  no  claim  shall  lie  against  the  fund.  Such 
funds  are  usually  maintained  jointly  by  employers  and  em- 
ployees, though  the  expense  is  not  necessarily  equally  shared. 

»  Quinn  v.  New  York,  etc.,  R.  Co.,  175  Mass.  150,  55  N.E.  891 ;  Pierce  v.  Van 
Dusen,  78  Fed.  693  ;  Minneapolis  &  St.  L.  R.  Co.  v.  Herrick,  127  U.S.  210,  8  Sup. 
Ct.  1176;  Pittsburg,  etc.,  R.  Co.  v.  Montgomery,  152  Ind.  1,  49  N.E.  582; 
Powell  V.  Sherwood,  162  Mo.  605, 63  S.W.  485  ;  Mumford  v.  Chicago,  etc.,  R.  Co., 
128  Iowa  685,  104  N.W.  1135  ;  Kansas  P.  R.  Co.  v.  Peavey,  supra.  Per  contra, 
see  Shaver  v.  Pennsylvania  Co.,  71  Fed.  931. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         147 

An  agreement  to  accept  benefits,  the  acceptance  to  operate  as 
a  waiver  of  the  right  of  action,  is  not  regarded  as  contrary  to 
public  pohcy,  inasmuch  as  it  is  not  the  making  of  the  agreement 
prior  to  the  injury,  which  would  not  in  itself  be  effective,  but 
the  acceptance  of  benefits  after  the  receipt  of  the  injury,  that 
bars  the  action.^  The  contract  merely  requires  the  employee 
to  make  his  election  whether  to  apply  to  the  relief  department 
or  to  sue.2  But  if  there  is  lack  of  mutuality,  or  the  defendant 
company  fails  to  show  that  it  assumes  a  fair  proportion  of  the 
burden  of  paying  the  benefits,  even  the  acceptance  of  such  bene- 
fits will  not  bar  a  suit  for  damages.'  Nor  will  a  partial  payment 
of  the  agreed  benefits  avail  as  a  bar  to  the  action.*  The  state 
has  the  right  to  promote  the  welfare  and  safety  of  those  within 
its  jurisdiction  by  requiring  all  corporations  and  persons  to  be 
responsible  for  their  negligence  to  the  full  measure  of  the  loss 
caused  thereby,  a  contract  to  the  contrary  notwithstanding.* 
A  contract  that  purports  to  bind  the  members  of  the  relief  de- 
partment by  the  decision  of  an  "advisory  committee,"  making 
such  decision  final  and  decisive,  is  void,  as  it  undertakes  to  defeat 
the  constitutional  right  of  appeal  to  the  courts  for  the  redress  of 
wrong.^ 

The  agreement  that  claims  on  the  benefit  fund  are  forfeited 
by  suit  in  which  judgment  is  procured  or  a  compromise  is  made 

>  Johnson  i-.  Philadolphia,  etc.,  R.  Co..  193  Pa.  St.  134,  29  Atl.  854  ;   Frank  v. 
Newport  Min.  Co..  148  Mich.  637,  112  N.W.  504. 

*  Owena  v.  Baltimore  &  O.  R.  Co.,  35  Fed.  715  ;  Leas  r.  Pennsylvania  Co.,  10 
Ind.  App.  47,  37  N.E.  423. 

»  Chicago,  B.  &.  Q.  R.  Co.  i>.  Miller,  70  Fed.  439  (CCA.)  ;  Atlantic  C  L.  R. 
Co.  V.  Beazley,  54  Fla.  311,  45  So.  761. 

*  Pennsylvania  Co.  v.  Chapman,  220  111.  428,  77  N.E.  248. 

'  Chicago,  M.  &  St.  P.  R.  Co.  r.  Solan,  169  U.S.  133,  18  Sup.  Ct.  289. 

*  Baltimore,  etc.,  R.  Co.  v.  Stankard,  56  Ohio  St.  224,  46  N.E.  577. 


148  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

was  held  valid  in  an  Iowa  case ;  ^  but  the  supreme  court  of  New 
Jersey  ruled  that  "the  judgment  intended  is  one  by  which  the 
claimant  recovers  some  compensation  for  the  loss  alleged,"  and 
granted  a  new  trial  in  a  suit  to  recover  the  benefit  where  a  suit 
for  damages  at  law  had  recovered  nothing.^  Double  recovery 
will  not  generally  be  allowed,  the  provision  of  such  contracts  that 
the  prosecution  of  a  suit  bars  the  claim  to  the  fund  fixing  the 
status  of  the  claimant  thereunder.^  This  question  has  been 
made  the  subject  of  legislation,  however,  and  a  statute  providing 
that  the  acceptance  of  insurance,  relief,  or  benefits  from  an  as- 
sociation of  the  nature  under  consideration  shall  not  be  a  bar  to 
an  action  to  damages  ^  has  been  held  constitutional,^  and  the 
fact  cannot  be  ignored  that  in  accepting  such  benefits  the  em- 
ployee feels  that  he  is  only  taking  that  to  which  he  is  entitled 
by  reason  of  his  contributions  to  the  fund  without  being  re- 
quired to  forfeit  his  right  to  recover  damages  at  law ;  and  it  is 
within  the  power  of  the  legislature  to  declare  that  the  payment 
of  such  benefits  shall  not  operate  to  discharge  an  employer  from 
liability  for  his  negligence  and  shift  the  burden  which  the  state 
has  declared  he  should  be  compelled  to  bear.^  A  statute  of 
South  Carolina  goes  a  step  farther,  and  requires  railroad  com- 
panies to  pay  the  agreed  benefit  on  the  death  of  an  employee 
from  accident,  with  the  provision  that  the  acceptance  of  such 
benefit  shall  not  be  a  bar  to  action  J    This  statute  has  been  de- 


.1  Donald  v.  Chicago,  etc.,  R.  Co.  93  Iowa  284,  61  N.W.  971. 
2  O'Reilly  v.  Pennsylvania  Co.,  69  N.J.L.  119,  54  Atl.  233. 
»  Baltimore  &  O.  R.  Co.  v.  Ray,  36  Ind.  App.  430,  73  N.E.  942. 

*  Iowa,  Code,  sec.  2071. 

»  McGuire  v.  Chicago,  etc.,  R.  Co.,  131  Iowa  340, 108  N.W.  902 ;  Chicago,  etc., 
R.  Co.  V.  McGuire,  219  U.S.  549,  31  Sup.  Ct.  259. 

•  Chicago,  etc.,  R.  Co.  v.  McGuire,  supra.  '  Acts  1903,  No.'48. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         149 

clared  valid/  but  it  was  held  that  an  employee  recovering 
damages  as  full  compensation  for  injuries  could  not  afterwards 
disregard  his  rehnquishment  of  his  interest  in  the  benefit  fund 
and  seek  to  secure  such  interest  in  an  action  at  law.  In  such  a 
case  the  statute  was  held  not  to  apply,  and  the  agreement  made 
by  the  employee  was  held  to  control. 

The  federal  hability  laws  of  1906  ^  and  1908 '  contain  pro- 
visions forbidding  contracts  of  waiver,  but  contributions  made 
by  employers  to  benefit  or  relief  societies  may  be  set  off  against 
any  judgment  for  damages  secured  by  an  injured  employee. 
This  provision  of  the  act  of  1906  was  held  to  be  valid  and  to 
give  an  injured  employee  a  right  to  sue  for  damages  in  spite  of 
the  fact  that  he  had  received  benefits  from  a  society  of  which  he 
was  a  member,  one  of  the  conditions  being  that  the  receipt  of 
such  benefits  should  bar  his  right  to  sue.* 

While  express  messengers  may  at  common  law  waive  their 
right  of  action  for  damages  in  case  of  injury  against  both  their 
employer  and  the  transporting  railway  company,  such  a  contract 
has  been  held  to  be  void  as  against  the  railroad  company  under 
the  Iowa  statute  above  mentioned.* 

Section  75.  Contributory  Negligence.  —  When  a  risk  involves 
such  a  degree  of  danger  that  a  prudent  man  would  not  assume 
it,  the  defense  to  an  action  by  an  injured  employee  is  not  that 
the  plaintiff  by  his  contract  assumed  the  risk,  but  that  he  was, 
by  his  conduct,  guilty  of  contributory  negligence.     In  practice, 

1  Sturgiss  V.  Atlantic  C.L.R.  Co..  80  S.C.  167,  60  S.E.  939. 
» Acts  1905-1906,  ch.  3073,  34  Stat.  232. 
»  Acta  1907-1908,  ch.  149,  35  Stat.  65. 

*  Goldenstcin  v.  Baltimore  &  O.  R.  Co.,  37  Wash.  L.  Rep.  2 ;  Potter  v.  Same 
37  Wash.  L.  Rep.  466. 

'  O'Brien  v.  Chicago  N.  W.  R.  Co.,  116  Fed.  602. 


150  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

the  line  is  not  clearly  drawn  between  the  two  defenses,  nor  is  it 
always  easy  to  do  so,  inasmuch  as  the  facts  in  a  given  case  may 
support  either  defense.  The  principles  are  distinct,  however, 
as  assumption  of  risk  is  an  implied  or  actual  agreement,  entered 
into  before  the  happening  of  the  accident,  to  waive  compensa- 
tion from  the  employer  for  injuries  resulting  therefrom ;  or,  it 
is  an  incident  of  the  contract,  read  into  it  by  the  fixed  rules  of 
law.  If,  however,  there  has  been  contributory  negligence, 
there  is  no  reference  to  either  contract  or  status  to  determine 
rights,  but  only  to  the  conduct  of  the  employee.  If  under  all 
the  attendant  circumstances  he  fell  short  of  reasonable  and 
ordinary  care,  the  defense  of  contributory  negligence  will  lie 
against  him. 

The  rule  is  announced  by  Cooley  as  follows :  "  If  the  plaintiff 
or  party  injured,  by  the  exercise  of  ordinary  care  under  the 
circumstances,  might  have  avoided  the  consequences  of  the 
defendant's  negligence,  but  did  not,  the  case  is  one  of  mutual 
fault,  and  the  law  will  neither  cast  all  the  consequences  upon 
the  defendant,  nor  will  it  attempt  any  apportionment  thereof." 

The  negligence  of  an  employee  will  not  be  a  bar  to  his  action 
unless  it  is  the  actual  and  proximate  cause  of  his  injury.  Con- 
duct merely  furnishing  the  occasion  or  condition  of  the  injury 
does  not  amount  to  negligence.^  Even  if  the  employee  was 
guilty  of  negligence  which  may  have  contributed  to  the  accident, 
yet  if  the  employer  by  the  exercise  of  ordinary  care  and  diligence 
could  have  avoided  its  occurrence,  the  antecedent  negligence 
of  the  employee  has  been  held  not  to  destroy  his  right  of  action. 
Still  less  will  the  neghgence  of  the  servant  operate  as  a  defense 
where  it  is  followed  by  willful  or  wanton  negligence  on  the  part 

1  Smithwick  v.  Hall  &  U.  Co.,  59  Conn.  261,  21  Atl.  924. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         151 

of  the  master.  Where  injuries  result  in  death,  the  right  of  the 
personal  representative  to  sue,  which  does  not  exist  under  the 
common  law,  but  is  now  given  by  statute  in  most  states,  is 
subject  to  the  same  limitations  as  would  have  been  the  right  of 
the  injured  person  if  he  had  survived. 

Section  76.  What  Negligence  bars  Recovery.  —  What  does 
and  what  does  not  constitute  such  negligence  as  to  be  a  bar  to 
an  employee's  claim  for  damages  have  not  been  consistently 
ruled  upon  by  the  courts.  The  test  varies  according  to  circum- 
stances, the  rule  being  that  the  servant  must  conduct  himself  as 
a  prudent  person  would  in  a  like  position. 

A  servant  engaging  in  work  for  which  he  is  not  qualified  by 
previous  experience,  and  incurring  injury,  is  held  to  have  been 
negligent. 

So  also  if  the  precautions  appropriate  to  dangerous  situations 
are  omitted,  or  if  an  unnecessarily  dangerous  method  of  doing 
work  is  chosen  where  the  employee  has  the  power  of  choice,  or 
if  he  assumes  or  remains  in  a  position  of  unnecessary  danger, 
he  will  be  held  to  be  guilty  of  contributing  to  his  own  injury. 

The  use  of  defective  or  otherwise  unsuitable  instrumentali- 
ties may  be  negligent,  though  if  a  showing  of  due  care  in  the 
circumstances  is  made,  and  the  danger  was  not  great  and  ob- 
vious, an  action  for  damages  may  be  maintained. 

Violation  of  orders  or  of  specific  valid  rules  of  which  the  em- 
ployee has  notice,  and  the  neglect  of  warnings  with  reference  to 
any  of  the  acts  named  above  will  usually  be  held  to  imply  neg- 
hgence  as  a  matter  of  law.^ 

The  general  rule  that  the  employee  loses  his  right  to  a  re- 

»  Coops  V.  Lake  Shore  &  M.  S.  R.  Co.,  66  Mich.  488,  33  N.W.  541 ;  LouisvUlo 
&  N.  R.  Co.  V.  Woods,  105  Ala.  561, 17  So.  41. 


152  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

covery  by  remaining  at  work  after  the  discovery  of  unsafe 
conditions  predicates  a  duty  to  leave  the  service  in  due  time  to 
escape  the  threatened  dangers.  How  far  he  may  omit  this 
duty  and  still  have  recourse  to  his  employer  for  compensation 
for  injuries  cannot  be  absolutely  determined  in  any  general 
sense,  but  it  is  allowable  for  the  employee  to  remain  a  reason- 
able time,  and  especially  if  his  immediate  departure  would 
jeopardize  the  safety  of  the  public  or  the  interests  of  his  em- 
ployers.^ 

Section  77.  Comparative  Negligence.  —  A  doctrine  of  com- 
parative negligence,  according  to  which  the  courts  attempt  to 
apportion  the  fault,  and,  if  the  preponderance  of  negligence 
seems  to  be  chargeable  to  the  employer,  to  award  damages  in  a 
corresponding  amount,  has  received  some  countenance  at  com- 
mon law,2  although  in  later  cases  in  the  same  courts  the  doctrine 
has  been  repudiated,  and  a  neghgent  employee  is  now  barred 
from  recovery  unless  it  appears  that  his  employer  was  guilty 
of  willful  negligence  in  connection  with  the  occasion  of  the  in- 
jury.^ The  doctrine  was  seemingly  approximated  in  a  recent 
case  in  which  the  court  awarded  damages  to  a  plaintiff  whose 
"negligence  was  shght  in  comparison  to  that  of  the  defendant," 
that  of  the  latter  being  held  to  be  the  proximate  cause  of  the 
accident.^  This  case  did  not  properly  present  the  doctrine  of 
comparative  negligence,  however,  but  rather  that  of  "the  last 

>  Irvine  v.  Flint  &  P.  M.  R.  Co.,  89  Mich.  416,  50  N.  W.  1008 ;  Pennsylvania 
Co.  V.  Roney,  89  Ind.  453,  46  Am.  Rep.  473  ;  Houston  &  T.  C.  R.  Co.  r.  Burnet, 
49  Texas  Civ.  App.  244,  108  S.W.  404 ;  Maryland  Steel  Co.  v.  Marney,  88  Md. 
482,  42  Atl.  60. 

*  Chicago  &  A.  R.  Co.  v.  Johnson,  116  lU.  206, 4  N.E.  381 ;  Wichita  &  W.  R.  Co. 
V.  Davis,  37  Kans.  743,  16  Pac.  78. 

»  Chicago  &  A.  R.  Co.  v.  Myers,  95  III.  App.  578. 

«  Dobyns  v.  Yazoo  &  M.  V.  R.  Co.,  119  La.  72,  43  So.  934. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         153 

clear  chance,"  according  to  which  the  party  who  last  has  a  clear 
opportunity  of  avoiding  an  accident  is  considered  responsible 
for  it,  notwithstanding  the  negligence  of  the  other  party. 

Apart  from  statutory  enactment,  therefore,  the  doctrine  of 
comparative  negligence  cannot  be  said  to  have  a  foothold  in 
American  jurisprudence  at  the  present  time.  The  Federal 
employers'  Uability  law  of  1908'  and  recent  law^s  in  several 
states  2  incorporate  it  in  their  provisions,  the  former  by  declaring 
contributory  negligence  not  to  be  a  bar  to  recovery,  but  that 
damages  shall  be  diminished  in  proportion  to  the  amount  of  the 
employee's  negligence,  the  latter  by  the  use  of  expressions  that 
direct  a  measuring  or  comparison  of  the  degree  of  neghgence 
with  which  the  two  parties  are  chargeable,  and  a  proportionate 
award  of  damages.  This  will  doubtless  give  rise  to  some  diffi- 
culties in  the  matter  of  administration,  but  it  is  clearly  a  more 
humane  rule  than  that  which  relieves  the  employer  from  the 
consequences  of  anything  short  of  willful  negligence  in  cases 
where  the  employee's  negligence  in  any  degree  contributed  to 
his  injury,  and  such  legislation  has  been  declared  constitutional.' 

Section  78.  The  Fellow-servant  Rule.  —  The  remaining 
defense  to  an  employee's  action  for  damages  is  what  is  known  as 
the  "fellow-servant"  rule,  or  the  doctrine  of  common  employ- 
ment. According  to  this,  where  the  employer  has  discharged 
his  duties  as  to  a  safe  place,  safe  and  suitable  appHances,  com- 
petent fellow-servants,  etc.,  he  is  not  liable  to  an  employee  for 
the  acts  or  negligence  of  any  mere  fellow-servant  or  co-employee, 

1  35  Stat.  ch.  149. 

»  Nebr.,  Acts  1907,  cli.  48;  Nev.,  Acta  1907.  ch.  214;  N.  Dak.,  Acts  1007, 
ch.  203  ;  S.  Dak..  Acts  1907.  ch.  219  ;  Wis..  Acts  1907.  ch.  254. 

»  Missouri  P.  R.  Co.  v.  Castle.  172  Fed.  841  (CCA.) ;  Kiley  v.  Chicago,  etc., 
R.  Co.,  138  Wis.  215,  119  N.W.  309. 


154  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

provided  such  co-employee  does  not  represent  the  employer. 
Or,  as  it  has  been  otherwise  stated,  "A  master  is  not  bound  to 
indemnify  one  servant  for  injuries  caused  by  the  negligence  of 
another  servant  in  the  same  common  employment  as  himself, 
unless  the  neghgent  servant  was  the  master's  representative." 
If,  however,  the  negligence  of  a  coservant  concurs  with  the 
negligence  of  an  employer  in  causing  the  injury,  the  injured 
employee  not  contributing  thereto,  the  employer  will  be  hable 
in  damages. 

The  well-known  diversity,  not  to  say  confusion  and  contra- 
dictoriness  of  the  ruhngs  of  the  courts  as  to  the  application  of 
this  rule  arises  from  the  lack  of  precise  and  generally  accepted 
definitions  of  the  idea  of  common  employment  and  of  represen- 
tation of  the  master.  The  relations  of  this  doctrine  to  the  other 
elements  which  determine  the  employer's  Habihty  are  such  that 
practically  all  that  has  been  said  with  reference  to  the  duties  of 
the  employer  and  the  assumption  of  risks  by  the  employee  must 
be  read  in  the  Ught  of  the  ruUngs  of  the  jurisdictional  courts  on 
the  subject,  although  the  principles  involved  are  held  to  be  those 
of  general  law.  In  an  opinion  on  a  fellow-servant  case  which 
was  before  the  Supreme  Court  of  the  United  States  a  few  years 
ago  it  was  said  that  "there  is  perhaps  no  one  matter  upon  which 
there  are  more  conflicting  and  irreconcilable  decisions  in  the 
various  courts  of  the  land  than  the  one  as  to  what  is  the  test  of 
common  service,  such  as  to  relieve  the  master  from  liability  for 
the  injury  of  one  servant  through  the  negUgence  of  another."^ 
Not  only  do  the  courts  of  the  various  states  differ,  but  in  the 
individual  states  are  found  fluctuations  of  opinion  from  time  to 

»  Baltimore  &  O.  R.  v.  Baugh,  149  U.S.  368,  13  Sup.  Ct.  914 ;  Northern 
P.  R.  Co.  V.  Dixon,  194  U.S.  338,  24  Sup.  Ct.  683. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         155 

time,  and  the  acceptance  of  new  standards,  with  departures 
from  former  positions,  so  that  it  is  important  to  know  the  date 
of  an  adjudication  in  order  to  determine  the  present  construc- 
tion in  the  state.  In  the  Supreme  Court  itself  we  find  a  deci- 
sion of  1884  strongly  modified  in  1893  and  practically  reversed 
in  1899.1 

The  attempt  has  been  made  in  a  number  of  states  to  fix  by 
statute  the  relations  of  employees  to  one  another,  and  to  deter- 
mine the  liability  of  the  employer  for  their  acts  or  negligence ; 
and  this  would  appear  to  be  the  only  practical  method  of  at- 
tempting a  solution  of  the  problem  as  it  exists  to-day.  It  must 
be  confessed,  however,  that  even  where  statutes  of  different 
states  are  closely  similar  if  not  identical  in  phraseology,  the 
effect  of  local  interpretations  is  apparent  in  the  varying  con- 
structions adopted. 

The  common  law  rule  was  enounced  in  England  and  America 
at  about  the  same  time,  apparently  independently,  and  to 
practically  the  same  effect.  Subsequent  developments  have 
been  more  favorable  to  the  employee  in  this  country  than  in 
England,  however,  some  states  having  apparently  lost  sight  of 
the  foundations  of  the  rule. 

The  reasons  offered  by  the  courts  for  the  rule  have  been  vari- 
ous, one  being  found  in  the  view  that  the  master's  responsibility 
is  at  an  end  when  he  has  used  ordinary  care  to  employ  com- 
petent servants.  It  is  held  that  the  employee  assumes  the  risk 
of  the  possible  negligence  of  a  co-employee  as  one  of  the  inci- 
dents of  the  employment.'    In  another  opinion  of  our  Supreme 

»Cf.  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ross,  112  U.S.  377,  5  Sup.  Ct.  184; 
Baltimore  &  O.  R.  Co.  v.  Baugh,  supra;  and  New  England  R.  Co.  r.  Conroy,  175 
U.S.  323,  20  Sup.  Ct.  85. 

»  Hough  V.  Texas  &  P.  R.  Co.,  100  U.S.  213,  25  L.  Ed.  612. 


156  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Court  it  was  said  that  the  obvious  reason  for  exempting  the 
employer  from  liability  is  that  the  employee  has  or  is  supposed 
to  have  such  risks  in  contemplation  when  he  engages  in  the  ser- 
vice, and  his  compensation  is  arranged  accordingly,  so  that  he 
cannot  in  reason  complain  if  he  suffers  from  a  risk  which  he  has 
voluntarily  assumed,  and  for  the  assumption  of  which  he  is 
paid.^  Another  reason  is  found  in  alleged  grounds  of  public 
policy,  as  tending  to  make  the  employees  more  watchful  over 
their  own  conduct  and  that  of  their  fellows,  thus  benefiting  em- 
ployers, employees,  and  the  public  alike  by  the  greater  care 
with  which  they  perform  their  duties.^  In  close  connection 
herewith  is  the  claim  that  any  marked  enlargement  of  liability 
to  capital  would  lead  to  the  withdrawal  of  capital  from  indus- 
trial enterprise,  thus  reducing  the  opportunities  of  employment 
and  inflicting  damage  upon  the  whole  community.^ 

Each  of  these  reasons  has  been  the  subject  of  adverse  criticism, 
and  no  one  of  them  seems  to  give  a  satisfactory  ground  for  ex- 
cepting employees  from  the  benefits  of  the  doctrine  of  respon- 
deat superior,  or  for  compelling  the  employee  to  bear  the  burden 
of  "pure  accidents"  which  occur  in  the  prosecution  of  under- 
takings, the  advantages  of  which  are  to  be  reaped  by  the  em- 
ployer. The  last  two  reasons  mentioned  above  have  perhaps 
been  most  frequently  relied  on  as  supporting  the  customary 
rule,  though  no  such  results  as  arc  therein  indicated  have  fol- 
lowed the  adoption  of  statutes  greatly  enlarging  the  rights  of 
employees  to  recover  for  injuries  following  upon  industrial 
accidents. 


>  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ross,  supra. 

*  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ross,  supra. 

*  New  Pittsburgh  Coal  &  C.  Co.  v.  Peterson,  136  Ind.  398,  35  N.E.  7. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         157 

The  chief  points  requiring  determination  in  any  action  in- 
volving the  principles  under  consideration  are  those  of  common 
employment  and  of  representative  capacity.  If  it  appears  that 
the  injuries  complained  of  are  the  result  of  the  negligence  of  a 
co-employee,  the  only  hope  of  the  plaintiff  lies  in  showing  that 
the  negligent  person  was  a  vice-principal,  representing  the 
master  at  the  time,  and  so  devolving  upon  him  a  liability  for 
the  acts  or  omissions  charged. 

Section  79.  Common  Employment. — The  first  question, 
then,  to  be  considered  is  what  constitutes  common  employment. 
It  was  said  in  a  leading  case  that,  "prima  facie,  all  who  enter 
into  the  employ  of  a  single  master  are  engaged  in  a  common 
service,  and  are  fellow-servants,"  ^  but  this  broad  statement 
will  not  answer  as  a  conclusive  test.  Not  only  employment  by 
a  common  master,  but  also  engagement  in  the  performance 
of  duties  that  may  reasonably  be  said  to  tend  to  the  accomplish- 
ment of  the  same  end  is  necessary  to  meet  general  acceptance 
by  the  courts ;  nor  is  it  a  sufficient  answer  to  say  that  all  serve 
the  profit  or  convenience  of  a  common  employer.  Where  an- 
other servant  than  the  plaintiff,  employed  for  a  purpose  entirely 
different  from  his  duties,  has  negligently  caused  the  injury  com- 
plained of,  it  may  well  be  said  that  they  are  not  fellow-servants. 
But  even  with  this  qualification  the  statement  is  not  definite 
enough  to  be  of  much  use  in  determining  particular  cases,  and 
the  expressions  used  by  judges  in  passing  on  the  question  of 
common  employment  throw  little  light  on  the  subject.  "En- 
gaged in  the  same  general  business,"  "  the  same  general  under- 
taking," or  "in  promoting  one  common  object"  are  frequent 
modes  of  expression,  though  in  other  cases  the  somewhat  more 

»  Baltimore  &  O.  R.  v.  Baugh.  149  U.S.  368,  13  Sup.  Ct.  914. 


158  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

restricted  phrases,  "services  having  an  immediate  common 
object,"  or  "working  in  the  same  place  to  subserve  the  same 
interests,"  are  used.  The  question  involves  both  law  and  facts, 
but  where  the  latter  are  undisputed,  the  decision  becomes  simply 
a  matter  of  law,  and  the  trial  jury  will  not  pass  upon  it. 

Section  80.  Contemplated  Risks.  —  A  theory  that  has  been 
adopted  in  many  cases  is  that  the  service  is  common  if  the  neg- 
ligence of  the  delinquent  servant  was,  in  a  fair  and  reasonable 
sense,  one  of  the  risks  contemplated  by  the  injured  employee  in 
undertaking  or  continuing  in  his  employment.^  This  is  a  refer- 
ence of  the  case  to  the  doctrine  of  assumed  risks  previously 
discussed,  and  involves  the  principles  of  knowledge,  actual  or 
presumptive.  By  this  theory  the  relation  of  the  duties  of  the 
injured  and  the  negligent  employees  becomes  the  criterion,  to- 
gether with  the  question  of  the  probability  of  the  negligence  of 
the  one  affecting  the  safety  of  the  other.  An  injured  employee's 
action  will  not  be  barred  as  matter  of  law  by  the  single  fact  of 
service  of  a  common  master  where  the  probabilities  of  injurious 
consequences  from  the  delinquent  servant's  negligence  were  too 
remote  to  be  reasonably  foreseen ;  ^  since  the  fellow-service  rule 
"should  be  confined  to  those  servants  whose  duties  bring  them 
into  such  juxtaposition  that  one  would  be  enabled  to  observe  the 
negligence  of  his  fellows."  '  This  has  also  been  termed  the 
association  theory,  and  the  supreme  court  of  Kentucky  in  a 
recent  case  declared  it  to  be  the  doctrine  of  that  state,  as  against 
the  departmental  theory.^  Yet,  inasmuch  as  the  question  is 
not  one  simply  of  locality,  but  of  likelihood  of  connected  con- 

"  Chicago,  M.  &  St.  P.  R.  Co.  v.  Ross,  112  U.S.  377,  5  Sup.  Ct.  184. 
«  Northern  P.  R.  Co.  v.  Hambly,  154  U.S.  349,  14  Sup.  Ct.  184. 
»  St.  Louis,  A.  <fe  T.  R.  Co.  v.  Welch,  72  Tex.  298,  10  S.W.  529. 
*  Louisville  R.  Co.  v.  Hibbitt,  139  Ky.  43,  139  S.W.  319. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         159 

sequences,  mere  remoteness  is  not  sufficient  to  negative  the  idea 
of  coservice  where  the  other  elements  are  present,  though  at 
what  point  the  Une  shall  be  drawn  is  often  difficult  to  determine. 
It  was  said  in  a  recent  case  that  the  assumption  of  risks  is  as 
broad  as  the  employee's  reasonable  anticipation  of  danger.' 

Section  81.  Departmental  Doctrine. — A  second  theory, 
based  on  a  different  test  from  that  of  contemplated  risk,  is  natu- 
rally suggested  by  the  considerations  indicated  above.  In  the 
application  of  this  theory  the  classification  turns  on  the  relation 
of  employees  in  different  departments  of  the  employer's  estab- 
lishment or  business,  more  or  less  segregated.  In  the  courts 
in  which  it  is  adopted  the  general  test  is  one  of  the  dentity  or 
diversity  of  the  departments  in  which  the  plaintiff  and  the 
delinquent  employee  were  at  work.  Since,  however,  no  satis- 
factory definition  of  the  term  "department"  has  yet  been  fur- 
nished, the  test  may  be  more  accurately  said  to  be  one  of 
consociation  of  duties,  i.e.,  such  a  relation  of  the  duties  of  the 
injured  employee  and  those  of  the  delinquent  co-employee  as  that 
the  former  had  a  reasonable  opportunity  for  protecting  himself 
from  injury  by  his  own  efforts.  All  courts  would  unite  in  ruling 
out  the  defense  of  co-employment  in  certain  classes  of  cases,  and 
there  is  a  hopeless  contrariety  of  views  as  to  where  this  defense 
shall  be  allowed  and  where  denied.  Even  in  those  states  where 
the  defense  is  most  frequently  based  on  what  has  been  called 
the  departmental  doctrine,  this  test  is  not  the  only  and  final 
one,  as  it  is  found  that  while  departments  may  be  distinct,  those 
employed  therein  may  be  thrown  into  such  contact  that  fellow- 
service  cannot  be  denied,  and  vice  versa.  While,  therefore,  the 
two  theories  presented  lead  to  real  and  wide  differences  of  view, 

»  Lukic  V.  Southern  P.  R.  Co.,  160  Fed.  135. 


160  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

there  is  a  class  of  cases  where  they  approach,  and  the  conclu- 
sions reached  therein  may  be  referred  indifferently  to  the  one 
reason  or  the  other. 

Section  82.  Representation  of  the  Employer.  —  No  court 
goes  so  far  as  to  assert  without  qualification  that  all  employees 
of  a  common  master,  or  even  in  the  same  department,  are  co- 
employees  in  such  sense  as  to  relieve  the  master  of  responsibility 
for  the  negligent  acts  of  those  who  are  his  representatives,  either 
permanently,  or  as  to  the  matter  in  hand.  But  here  again  there 
are  as  irreconcilable  differences  as  any  that  have  been  noted, 
and  it  will  be  possible  only  to  present  the  different  views  without 
attempting  to  summarize  them  or  to  bring  them  into  harmony. 

There  are  in  general  two  grounds  on  which  adjudications  are 
based :  One,  the  mere  superiority  in  rank  of  the  negUgent  em- 
ployee and  the  other,  the  nature  of  the  injurious  act,  i.e., 
whether  or  not  it  was  one  which  was  connected  with  the  dis- 
charge of  the  so-called  nondelegable  duties  of  the  employer. 
Like  other  distinctions  made  in  the  applications  of  the  fellow- 
servant  rule,  there  are  cases  in  which  the  decision  might  be 
reached  by  the  u::  cf  either  test,  but  in  other  cases  the  adoption 
of  the  one  rule  w^'J  be  found  to  be  decisive  along  hnes  not  ca- 
pable of  being  reached  by  the  other  unless  by  giving  a  special 
meaning  thereto. 

Section  83.  Test  of  Rank.  —  The  representative  of  the  em- 
ployer is  most  frequently  termed  by  the  courts  a  vice-principal, 
though  the  actual  functions  of  his  employment  and  not  the 
designation  by  which  he  is  known  while  at  work  will  be  deter- 
minative in  any  case.  This  rule  has  been  made  to  extend  so  far 
as  to  relieve  the  employer  even  when  the  injured  emploj'ee  in 
good  faith  regarded  the  negligent  employee  as  his  superior,  not 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         IGl 

knowing  of  the  latter's  discharge  from  that  position.^  On  the 
other  hand,  a  coservant  intrusted  temporarily  with  the  duties 
of  a  vice-principal  must  be  answered  for  by  the  employer  no 
less  than  if  he  were  permanently  holding  the  position.  Repre- 
sentation, however,  must  be  actual.  In  a  majority  of  the  juris- 
dictions of  the  Union  the  mere  fact  of  superiority  of  rank  is  not 
sufficient  to  charge  the  employer  with  liability  for  the  negligence 
of  the  superior  servant,  though  the  negligence  complained  of 
may  have  been  connected  with  the  giving  of  orders.^  Nor  do 
these  courts  consider  that  the  adding  on  of  the  power  to  hire  and 
discharge  is  sufficient  to  convert  a  foreman  of  subordinate  grade 
to  the  rank  of  vice-principal,  as  mere  fear  of  discharge  will  not 
justify  the  assumption  of  undue  risks.^  And  this  is  true  even 
when  there  is  power  of  control.*  Thus  it  was  said  in  a  recent 
case  that  "a  servant  who  sustains  an  injury  from  the  negligence 
of  a  superior  agent,  engaged  in  the  same  general  business,  can- 
not maintain  an  action  against  their  common  employer,  although 
he  was  subject  to  the  control  of  such  superior  agent,  and  could 
not  guard  against  his  negligence  or  its  consequences."®  This 
rule  is  based  on  the  theory  that  the  contracting  employee  as- 
sumes the  risk  of  his  superior's  negligence  as  one  of  the  ordinary 
risks  of  his  employment,  but  is  subject  to  the  restrictions  result- 
ing from  the  application  of  the  doctrine  of  nondelegable  duties. 
This  principle  does   not,  except   in   a  few  states,  extend  to 

J  Allen  V.  Goodwin.  92  Tenn.  385,  21  S.W.  760. 

»  Kimmer  v.  Weber,   151   N.Y.  417,  45  N.E.  860 ;    McLean  v.  Blue  Point 
G.  M.  Co.,  51  Cal.  255. 

»  Alaska  Treadwell  Gold  Min.  Co.  v.  Whelan.  168  U.S.  86,  18  Sup.  Ct.  40. 

«  Vitto  V.  Keogan,  15  App.  Div.  329,  44  N.Y.  Supp.  1 ;  Lehigh  Valley  Coal  Co. 
V.  Jones,  86  Pa.  432  ;  Viltor  Mfg.  Co.  v.  Otte,  157  Fod.  230  (C.C.A.). 

6  Keenan  v.  New  York,  L.  E.  &  W.  R.  Co.,  145  N.Y.  190,  39  N.E.  711. 
M 


162  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

actual  superintendents  or  managers  of  an  employer's  business ; 
nor  is  it  vital  that  such  representative  shall  not  be  employed  in 
part  at  actual  labor,  or  that  he  shall  receive  a  higher  salary  than 
his  subordinates.  No  fixed  rule  is  discoverable,  but  to  render 
the  employer  liable  the  employee  "must  be  more  than  a  mere 
foreman  to  oversee  a  batch  of  hands  and  direct  their  work  under 
the  supervision  of  the  master."  ^  Or,  as  stated  in  another  case 
"he  must  have  general  power  and  control  over  the  business,  and 
not  mere  authority  over  a  certain  class  of  work  or  a  certain  gang 
of  men."  ^ 

Section  84.  Superior  Servant  Doctrine.  —  While  such  is  the 
rule  in  the  greater  number  of  American  jurisdictions,  what  is 
known  as  the  "superior  servant  doctrine"  has  been  adopted  in 
a  number  of  states.'  The  form  of  this  rule  varies  in  different 
states,  or  even  in  the  same  court ;  and  there  is  inconsistency  in 
its  application  to  different  cases,  resulting  from  an  unwilling- 
ness on  the  part  of  some  courts  to  carry  it  out  to  its  logical  con- 
clusions, and  from  an  indefiniteness  as  to  the  point  where  it 
shall  cease  to  control.  It  was  characterized  as  a  "discredited" 
doctrine  in  a  recent  case,^  but  it  is  not  only  recognized  in  a  num- 
ber of  jurisdictions  as  a  rule  of  common  law,  but  has  moreover 
received  statutory  recognition.^ 

The  forms  in  which  the  doctrine  is  expressed  vary,  but  all  are 

»  Dobbin  v.  Richmond  &  D.  R.  Co.,  81  N.C.  446,  31  Am.  Rep.  512. 

»  New  York,  L.  E.  &  W.  R.  Co.  v.  Bell,  112  Pa.  400,  4  Atl.  50. 

»  Consol.  Coal  Co.  v.  Wombaeher,  134  111.  57,  24  N.E.  627  ;  Walker  v.  Gillett, 
69  Kans.  214,  52  Pac.  442 ;  Southern  R.  Co.  v.  Barr,  21  Ky.  L.  R.  1615,  55  S.W. 
900  (but  see  Cin.,  N.  O.  &  T.  P.  R.  Co.  v.  Hill's  Adm'r..  28  Ky.  L.  R.  530,  89 
S.W.  523)  ;  Faren  v.  Sellers,  39  La.  Ann.  1011.  3  So.  363. 

*  Lukic  V.  Southern  P.  R.  Co.,  160  Fed.  135. 

»Cal.,  Acts  1907,  ch.  97 ;  Ohio,  Gen.  Code,  sec.  9016 ;  S.C,  Const.,  Art.  9, 
sec.  15. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         163 

to  the  effect  that  the  employer  is  Uable  to  an  injured  employee 
where  his  injury  is  caused  by  the  exercise  of  the  authority  con- 
ferred by  the  employer  on  another  employee. 

In  one  case  '  the  following  language  was  used:  "Where  the 
master  appoints  an  agent  with  a  superintending  control  over  the 
work,  and  with  power  to  employ  and  discharge  hands  and  direct 
and  control  their  movements  in  and  about  the  work,  the  agent 
.  .  .  stands  in  the  place  of  the  master."  Various  grounds  are  of- 
fered in  support  of  this  view,  the  most  satisfactory  one  being 
that  advanced  in  an  early  Ohio  case,^  in  which  the  duty  of  super- 
vision and  control  was  treated  as  nondelegable;  or,  as  stated 
in  a  Missouri  case,'  "the  master,  by  appointing  a  foreman  or 
other  person  to  superintend  the  work,  with  power  to  direct  the 
men  under  him  how  to  do  it,  thereby  devolves  upon  such  person 
the  performance  of  those  duties  personal  to  the  master." 

Section  85.  Status  of  Manager.  —  It  has  already  been  in- 
dicated that  there  are  some  states  in  which  what  may  be  called 
the  "extreme  view"  of  fellow-service  is  held,  i.e.,  that  even  a 
general  manager  is  a  fellow-servant.^  This  may  be  called  the 
English  as  opposed  to  the  American  view,  as  it  prevails  where 
the  rulings  of  the  House  of  Lords  are  the  precedent ;  while  in 
by  far  the  greater  number  of  the  states  of  this  country  there  is 
a  recognition  of  an  actual  superintendent  or  general  manager  as 
the  master's  representative,  for  whose  acts  the  master  is  account- 
able.    While  the  cases  involving  the  question  of  vice-principal- 

>  Stephens  v.  Hannibal  &  St.  J.  R.  Co.,  86  Mo.  221. 

»  Cleveland.  C.  &  C.  R.  Co.  v.  Keary,  3  Ohio  St.  201.  (See  also  Little  Miami 
R.  Co.  V.  Stevens,  20  Ohio  415.) 

»  Miller  v.  Missouri  P.  R.  Co..  109  Mo.  350.  19  S.W.  58. 

*  Curlcy  V.  Hoff,  62  N.J.L.  758,  42  Atl.  731  ;  Mobile  &  M.R.  Co.  v.  Smith,  59 
Ala.  245  ;  Meehan  v.  Spiers  Mfg.  Co.,  172  Mass.  375, 52  N.E.  618 ;  Howd  v.  Miss. 
C.  R.  Co.,  50  Miss.  178. 


164  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

ship  in  this  form  naturally  disclose  for  the  most  part  conditions 
of  what  may  be  considered  permanent  relationship,  the  same 
rule  has  been  held  to  apply  to  persons  occupying  the  position 
only  temporarily ;  as,  for  instance,  in  the  performance  of  specific 
undertakings,  after  the  completion  of  which  the  representative 
would  assume  his  customary  rank  as  co-employee  with  his  tem- 
porary subordinates.  Both  the  scope  and  the  reason  of  the  rule 
are  in  part  indicated  in  the  opinion  given  in  a  New  York  case,* 
in  which  it  was  held  that  where  the  "master  withdraws  from  the 
management  of  the  business,  or  the  business  is  of  such  a  nature 
that  it  is  necessarily  committed  to  agents,  as  in  the  case  of 
corporations,  the  master  is  liable  for  the  neglects  and  omissions 
of  duty  of  the  one  charged  with  the  selection  of  the  other  ser- 
vants, in  employing  and  selecting  such  servants,  and  in  the 
general  conduct  of  the  business  committed  to  his  care." 

In  some  of  the  states  in  which  the  courts  had  favored  the 
view  that  the  fellow-servant  rule  extended  even  to  employees 
in  charge  of  work,  legislative  enactments  have  intervened,  pro- 
viding that  for  the  exercise  of  superintendence  intrusted  to  any 
employee  by  the  employer  the  latter  should  be  responsible.^ 

Section  86.  Heads  of  Departments.  —  On  principle,  a  court 
that  recognizes  the  manager  of  an  entire  business  as  the  master's 
representative  cannot  well  refuse  similar  recognition  to  persons 
in  charge  of  single  branches  of  an  undertaking,  as  in  large  in- 
dustrial undertakings  the  head  of  such  a  branch  is  completely 
in  control  of  the  men  under  him,  and  the  management  of  its 
affairs  is  as  fully  in  his  hands  as  if  it  were  an  independent 

»  Malone  v.  Hathaway,  64  N.Y.  5,  21  Am.  Rep.  573. 

»  Ala.,  Code,  sec.  3910 ;  Mass.,  Acts  1909,  ch.  514,  sec.  127  ;  Miss.,  Const.,  sec, 
193,  Code,  sec.  4056. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         165 

business.  Thus  it  has  been  held  by  the  United  States  Supreme 
Court  ^  that  there  is  a  "clear  distinction  to  be  made  in  their 
relation  to  their  common  principal,  between  servants  of  a  cor- 
poration exercising  no  supervision  over  others  engaged  with 
them  in  the  same  employment,  and  agents  of  the  corporation 
clothed  with  the  control  and  management  of  a  distinct  depart- 
ment in  which  their  duty  is  entirely  that  of  direction  and  super- 
intendence." The  limits  of  the  application  of  this  principle 
are  not  clearly  marked.  The  courts  making  most  frequent  use 
of  it  are  the  federal  courts,  and  their  position  may  be  con- 
sidered as  fairly  presented  in  the  statement  that  it  is  only  in- 
dividuals who  are  in  charge  of  separate  branches  and  departments 
of  service,  and  have  entire  and  absolute  control  therein,  that  are 
properly  to  be  considered,  with  respect  to  employees  under  them, 
as  vice-principals. 

Section  87.  Character  of  Act  as  Test.  —  In  cases  in  which 
vice-principalship  is  conceded  there  is  yet  a  possible  distinction 
as  to  the  kind  of  acts  for  which  the  employer  will  be  held  re- 
sponsible. In  the  first  place  it  must  obviously  be  a  negligent 
act ;  and,  secondly,  it  must  be  within  the  scope  of  the  agent's 
authority  and  be  connected  with  the  proper  business  of  his  em- 
ployment. Besides  these  points,  as  to  which  it  is  only  necessary 
to  establish  the  facts  in  order  to  determine  their  status,  the 
question  of  the  oflficial  or  nonofficial  quality  of  the  acts  con- 
sidered may  be  raised. 

In  accordance  with  this  view,  a  doctrine  of  dual  capacity  has 
been  developed,  according  to  which  some  acts  of  the  employer's 
representative  may  be  taken  as  those  of  a  mere  servant  and 
not  of  such  a  nature  as  to  make  the  employer  responsible  for 

»  Chicago,  M.  A  St.  P.  R.  Co.  r.  Robs,  112  U.S.  377.  5  Sup.  Ct.  184. 


166  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

negligence  therein.^  In  the  courts  adopting  this  doctrine,  the 
negligent  performance  of  the  so-called  "nondelegable"  duties  by- 
one  who  is,  by  virtue  of  his  rank,  conceded  to  be  a  vice-principal 
casts  a  burden  on  the  employer,  while  the  same  person  may,  as 
a  coservant,  perform  an  act  of  manual  labor  negligently,  and 
to  the  injury  of  a  fellow- workman,  without  devolving  any  li- 
ability therefor  upon  the  employer.  This  doctrine  also  has 
received  statutory  recognition.^ 

On  the  other  hand  are  to  be  ranged  those  courts  which  do  not 
consider  that  the  character  of  a  vice-principal  shifts  with  the 
nature  of  his  acts,  holding  that  the  master  is  liable  for  the  neg- 
ligence of  his  representative  whether  the  negligent  act  was  done 
by  his  own  hand  or  by  another  under  his  orders.^  Federal  cases 
supporting  this  view  may  also  be  found.'*  In  Missouri  it  was 
recently  declared  by  the  supreme  court  that  the  doctrine  of 
dual  capacity  was  fully  established  in  that  state,^  and  a  number 
of  cases  were  cited  in  support  of  that  view,  beginning  with  Har- 
per V.  Indianapolis  and  St.  Louis  R.  Co.  (47  Mo.  567,  4  Am. 
Rep.  358).  It  was  held  in  a  later  case,  however,^  that  the  neg- 
ligent performance  by  a  section  foreman  of  ordinary  labor  such 

1  Reed  v.  Stockmeyer,  74  Fed.  186  (CCA.)  ;  Mann  v.  Oriental  Print  Works, 
11  R.I.  152 ;  Crispin  v.  Babbitt.  81  N.Y.  516,  37  Am.  Rep.  521 ;  St.  Louis.  A.  & 
T.  R.  Co.  V.  Torrey,  58  Ark.  217,  24  S.W.  244. 

«  Ala.,  Code,  sec.  3910 ;  Conn.,  G.S..  sec.  4702 ;  Mass..  Acts  1909,  ch.  514,  sec. 
127. 

'  Illinois  C  R.  Co.  v.  Josey's  Adm'x.,  22  Ky.  L.  R.  1795.  61  S.W.  703  ;  Consol. 
Kansas  City  Smelting  &  Ref.  Co.  v.  Peterson.  8  Kans.  App.  316.  55  Pac.  673; 
Crystal  Ice  Co.  v.  Sherlock,  37  Nebr.  19.  55  N.W.  294  ;  Purcell  v.  Southern  R.  Co., 
119  N.C  728,  26  S.E.  161 ;  Berea  Stone  Co.  v.  Kraft,  31  Ohio  St.  287,  27  Am.  Rep. 
610. 

*  Au  V.  New  York,  etc.,  R.  Co.,  29  Fed.  72  ;  Hardy  v.  Minneapolis,  etc.,  R.  Co., 
36  Fed.  657. 

»  Fogarty  v.  St.  Louis  Transfer  Co.,  180  Mo.  490,  79  S.W\  664. 

•  Hutson  V.  Missouri  P.  R.  Co.,  50  Mo.  App.  300. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         167 

as  a  coservant  would  engage  in,  resulting  in  injury  to  a  work- 
man in  his  gang,  was  the  negligence  of  the  employer:  "There 
is  no  just  or  logical  distinction  between  the  act  of  the  vice- 
principal  in  negligently  ordering  a  servant  to  do  an  imprudent 
thing  and  in  doing  the  same  himself."  '  In  Texas  also  decisions 
in  apparent  conflict  may  be  found,  some  "^  denying  the  dual 
capacity  theory,  while  a  case  of  the  same  date  ^  supports  it. 
Examples  of  lack  of  harmony  could  be  adduced  from  other 
states ;  and,  as  appears  from  the  citations  given,  the  rulings  of 
the  federal  courts  are  not  uniform. 

A  federal  judge  in  a  recent  case  ^  declared  that  the  test  of 
rank  has  been  largely  superseded  in  the  federal  courts  by  the 
test  of  the  character  of  the  act.  "The  question  is  always," 
said  the  judge,  "whether  the  negligence  charged  is  the  neglect 
of  a  primary  and  absolute  duty  of  the  master  to  the  servant. 
If  such  be  its  character,  no  delegation  of  the  performance  of  that 
duty  to  another,  no  matter  how  inferior  his  rank  may  be  in  the 
master's  service,  can  relieve  the  liability  of  the  master  for  its 
neglect;  "  and  the  characterization  of  the  superior  servant 
doctrine  as  discredited  indicates  the  same  view.^ 

Section  88.  Tests  not  Mutually  Exclusive.  —  It  is  not  to  be 
understood  that  the  different  tests  of  vice-principalship  are 
mutually  exclusive  in  any  jurisdiction,  or  even  in  any  case 
in  which  the  question  arises.     The  courts  may  approach  the 

>  See  further,  Dayharsh  v.  Hannibal  &  St.  J.  R.  Co..  103  Mo.  570.  15  S.W.  554. 
and  Russ  v.  Wabash  W.  R.  Co.,  112  Mo.  4.5,  20  S.W.  472. 

«  Sweeny  v.  Gulf,  etc.,  R.  Co..  84  Tex.  433,  19  S.W.  555  :  Texas  &  P.  R.  Co.  v. 
Reed,  32  S.W.  118  (Tex.  Civ.  App.). 

»  Gulf.  C.  &  S.  F.  R.  Co.  V.  Schwabbe,  1  Tex.  Civ.  App.  573.  21  S.W.  706. 

*  Peters  v.  George.  154  Fed.  634. 

»  Lukic  V.  Southern  P.  R.  Co.,  160  Fed.  135. 


168  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

question  in  either  way,  or,  as  frequently  happens,  expressions  are 
used  in  a  single  case  which  refer  some  to  one  and  some  to  the 
other  method  of  determining  the  point  at  issue.  The  general 
result  of  using  the  test  of  the  character  of  the  act  may  be  said  to 
be  favorable  to  the  employee,  since  under  it  "an  act  of  the  mas- 
ter" may  be  performed  by  an  employee  of  whatever  rank; 
though  obviously  it  favors  the  dual  capacity  theory,  and  tends 
in  so  far  to  limit  recovery  for  the  acts  of  a  superior. 

It  is  clear  that  the  opportunity  for  litigation,  in  connection 
with  the  application  of  the  test  of  the  character  of  the  act,  lies 
not  so  much  in  the  acceptance  or  rejection  of  general  principles, 
or  of  the  doctrine  of  representation  as  such,  for  a  determination 
of  these  points  having  been  once  made  in  a  jurisdiction  they  may 
be  said  to  be  the  local  law ;  rather,  the  numerous  accumulated 
decisions  bear  mainly  on  the  question  of  the  boundaries  between 
the  field  covered  by  the  doctrine  of  nondelegable  duties  and 
that  covered  by  the  fellow-servant  doctrine,  or,  as  otherwise 
expressed,  between  "the  act  of  a  master  and  the  act  of  an  em- 
ployee," boundaries  which  are,  as  has  been  said  with  good  reason, 
"sometimes  quite  vague  and  shadowy."  Thus  it  is  established 
that  one  of  the  employer's  duties  is  to  use  due  care  to  furnish 
and  maintain  a  safe  place  to  work,  while  a  negligent  act  on  the 
part  of  an  employee  may  at  any  moment  render  a  place  unsafe 
for  his  co-employees.  When  or  at  what  point  liability  attaches 
is  a  question  that  comes  before  the  courts  to  be  determined  on 
the  merits  of  the  particular  facts,  and,  apart  from  precedents 
presenting  a  practical  identity  of  conditions,  the  question  may 
be  fairly  considered  an  open  one.  Certain  general  principles 
are,  of  course,  settled  in  any  case,  but,  after  all,  there 
remains  an  undetermined  margin  on  the   merits   of    which 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         169 

the  plaintiff  grounds  his  undertaking  for  a  recovery,  hoping 
that  in  his  particular  case  the  scales  will  turn  in  his  favor,  so 
that  instead  of  conclusive  classifications  being  formed,  it  appears 
rather  that  the  volume  of  litigation  relating  to  this  department 
of  the  law  of  employers'  liability  is  steadily  growing. 

Section  89.  Modification  of  Employers'  Liability  by  Statute.  — 
It  appears  to  be  the  consensus  of  legislative  opinion  that  of  all 
the  weak  points  in  the  American  law  of  employers'  liability,  the 
one  that  presents  the  most  objectionable  features  is  that  repre- 
sented by  the  fellow-servant  doctrine.  At  least  it  is  to  this 
phase  that  legislatures  have  most  frequently  addressed  them- 
selves, one,  that  of  Colorado,  having  achieved  the  sole  distinction 
of  completely  abrogating  the  doctrine.^  This  statute  was  de- 
clared constitutional  by  the  supreme  court  of  the  state,*  the 
court  ruling  that  the  act  renders  the  employer  liable  for  damages 
resulting  from  injuries  to  an  employee,  caused  by  the  negligence 
of  a  co-employee,  in  the  same  manner  and  to  the  same  extent  as 
if  the  negligence  were  that  of  the  employer.  The  law  does  not 
affect  the  defenses  of  assumed  risks  or  contributory  negligence. 

Liability  laws  patterned  more  or  less  closely  after  the  British 
law  of  1880  on  this  subject  have  been  enacted  in  a  number  of 
jurisdictions.'  These  acts  are  frequently  referred  to  as  "fellow- 
servant  laws,"  since  their  principal  feature  is  the  abrogation, 
as  to  the  classes  of  employees  enumerated  and  under  the  condi- 

>  Supp.,  sees.  151  If.  151  Ig.     See  also  pp.  186.  197,  198. 

«  Vindicator  Consol.  Min.  Co.  v.  Firstbrook,  36  Colo.  499.  86  Pac.  313. 

•Ala.,  Code,  sec.  3910:  Cal..  Acts  1907.  ch.  97;  Colo..  Supp.  sees.  1511a 
-151  le;  Idaho.  Acts  1909,  p.  34;  Ind.,  A.S.,  sec.  7083;  Me.,  Acts  1909,  ch. 
258;  Mass.,  Acta  1909.  ch.  514,  sees.  127-134;  Mich.,  Acts  1909,  No.  104; 
N.J.,  Acts  1909,  ch.  83;  N.Y.,  Acts  1910,  ch.  352;  Pa.,  Acts  1907,  No.  329; 
P.R.,  R.S.,  sees.  322-331 ;  and  Texas,  Acts  1909  (extra  session),  ch.  10. 


170  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

tions  specified,  of  the  defense  of  common  employment.^  The 
introductory  provision  as  to  defects  in  ways,  etc.,  adds  little  or 
nothing  to  the  common  law  rule  as  followed  in  this  country  as 
to  the  duty  of  the  employer  as  to  safe  places  and  appliances.^ 
The  same  may  be  said  of  the  provision  relative  to  the  reporting 
of  facts  by  the  employee,  if  cognizant  thereof ;  though  as  most 
of  the  statutes  make  the  employee's  failure  to  report  a  bar  to 
his  recovery,  if  injured,  while  at  common  law  such  failure  was 
only  an  added  reason  why  he  could  not,  under  such  circum- 
stances, recover,  it  may  be  said  that  this  provision  places  an 
employee  who  knows  of  the  defect  in  a  more  unfavorable  posi- 
tion than  before,  so  far  as  the  question  of  the  assumption  of 
risk  is  concerned.  Nor  do  these  laws  much  affect  the  defense 
of  contributory  negligence.  They  are  chiefly  effective  in  their 
determination  of  responsibility  for  the  acts  of  superiors,  and  of 
designated  classes  of  employees  on  railroads.  As  to  superiors, 
it  may  be  noted  that  different  laws  recognize  both  the  superior 
servant  ^  and  dual  capacity  ^  doctrines.  The  California  statute 
distinctly  presents  the  departmental  doctrine ;  so  that  it  is  clear 
that  even  the  enactment  of  statutes  which  clearly  enlarge  the 
employer's  responsibility,  as  do  these,  do  not  secure  uniformity, 
since  they  are  both  differently  phrased  and  differently  con- 
strued. 

The  rule  that  statutes  in  derogation  of  the  common  law  will 
be  strictly  construed  has  generally  been  modified  by  the  state 
courts  in  respect  of  the  acts  above  discussed,  in  order  that  the 


»  Coffee  V.  New  York,  etc.,  R.  Co.,  155  Mass.  21,  28  N.E.  1128. 
«  Ryalls  1).  Mechanics'  Mills,  150  Mass.  190,  22  N.E.  766. 
»  Kansas  City,  M.  &  B.  R.  Co.  v.  Burton,  97  Ala.  240,  12  So.  88. 
*  Gmaehle  v.  Rosenberg,  178  N.Y.  147,  70  N.E.  411. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         171 

manifest  ends  of  the  laws  may  be  attained.^  They  in  no  way 
interfere  with  the  common  law  rights  of  an  injured  employee, 
and  he  may,  if  he  prefers,  bring  his  action  at  common  law  instead 
of  under  the  statute. 

Section  90.  Statutes  Affecting  Designated  Employments.  —  A 
very  considerable  number  of  states  have  laws  applying  specifi- 
cally to  the  business  of  railroading,  some  of  them  applying  to  all 
employees,  and  some  only  to  those  engaged  in  the  operation  of 
the  road.  These  laws  range  in  effect  from  the  slightest  possible 
deviation  from  the  principles  of  the  common  law  to  a  complete 
abrogation  of  the  defense  of  fellow-service,  and  important 
changes  in  those  of  contributory  negligence  and  of  assumed 
risks. 

The  constitutionality  of  laws  relating  to  railroads  only  has 
been  repeatedly  decided  in  their  favor  in  the  face  of  contentions 
that  they  are  discriminatory,  not  affording  railroads  equal  pro- 
tection with  other  businesses,  and  that  the  laws  deprive  railroad 
companies  of  their  property  without  due  legal  process,  thus 
alleging  that  such  laws  are  in  conflict  with  the  fourteenth  amend- 
ment of  the  Constitution  of  the  United  States.  The  Kansas 
statute  abrogating  the  defense  of  fellow-service  was  attacked 
in  the  United  States  Supreme  Court,^  which  declared  the  law 
valid,  using  in  part  the  following  language,  which  shows  the 
general  grounds  on  which  such  laws  are  upheld  :  — 

"The  greater  part  of  all  legislation  is  special,  either  in  the 
objects  sought  to  be  ascertained  by  it,  or  in  the  extent  of  its 
application.  Such  legislation  does  not  infringe  upon  the  clause 
of  the  fourteenth  amendment  requiring  equal  protection  of  the 

>  Mobile  &  B.  R.  Co.  v.  Holborn,  84  Ala.  133,  4  So.  146. 

»  Missouri  P.  R.  Co.  v.  Mackcy,  127  U.S.  205,  8  Sup.  Ct.  1161. 


172  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

laws,  because  it  is  special  in  its  character.  When  legislation 
applies  to  particular  bodies  or  associations,  imposing  upon  them 
additional  liabilities,  it  is  not  open  to  the  objection  that  it 
denies  to  them  the  equal  protection  of  the  laws,  if  all  persons 
brought  under  its  influence  are  treated  alike  under  the  same 
conditions.  The  hazardous  character  of  the  business  of  operat- 
ing a  railway  would  seem  to  call  for  special  legislation  with 
respect  to  railroad  corporations,  having  for  its  object  the  pro- 
tection of  their  employees  as  well  as  the  safety  of  the  public. 
The  business  of  other  corporations  is  not  subject  to  similar 
dangers  to  their  employees,  and  no  objections,  therefore,  can  be 
made  to  the  legislation  on  the  ground  of  its  making  an  unjust 
discrimination.  It  meets  a  particular  necessity,  and  all  railroad 
companies  are,  without  discrimination,  made  subject  to  the 
same  liabilities." 

Special  laws  relating  to  mine  labor  ^  receive  judicial  support 
on  the  grounds  set  forth  in  the  case  just  cited.^ 

Section  91.  Promise  to  Repair.  —  In  cases  where  repairs 
are  needed,  and  the  fact  is  known  to  the  servant,  the  risk  in- 
volved in  continuing  in  the  service  under  the  conditions  of  dis- 
repair maj-  be  shifted  to  the  employer  by  his  giving  a  promise 
to  remedy  the  defective  conditions,  and  the  effect  of  the  promise 
is  the  same  whether  it  is  made  in  response  to  a  complaint  by 
the  servant  or  voluntarily.'  The  fact  that  a  promise  was  made 
does  not  suffice  to  conclude  the  investigation,  however,  but 
serves  only  to  introduce  new  facts  for  consideration.     The 

>  Md.,  Acts  1902,  ch.  412 ;  Mo..  Acts  1907,  p.  251 ;  lU.,  R.S.,  ch.  93 ;  Ohio, 
Acta  1910,  p.  52. 

» State  V.  Murlin,  38  S.W.  923  (Mo.) ;  Wilmington  Star  Min.  Co.  v.  Fill- 
ton,  205  U.S.  60,  27  Sup.  Ct.  412. 

»  Virginia  &  N.  C.  Wheel  Co.  v.  Chalkley,  98  Va.  62,  34  S.E.  976. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         173 

promise  must  be  made  by  the  employer  or  his  representative, 
and  must  be  the  inducement  for  the  employee's  continuance  in 
the  situation  where  the  injury  occurred.^ 

Though  the  effect  of  such  a  promise  is  not  entirely  excluded 
from  consideration  in  cases  where  it  was  given  before  the  be- 
ginning of  work,  the  doctrine  applies  chiefly  to  cases  where  it 
was  made  subsequent  to  such  beginning.  It  is  then  held  to 
rebut  for  a  reasonable  length  of  time  the  presumption  that  the 
employee  assumed  the  risk  or  that  he  was  guilty  of  contributory 
negligence  in  remaining  in  a  place  of  known  danger,  though  it 
does  not  of  itself  entitle  an  injured  employee  to  recovery.^ 

Section  92.  Direct  Orders.  —  The  fact  that  an  employee  was 
acting  under  direct  orders  at  the  time  his  injury  was  received  is 
also  influential  in  determining  his  right  to  recover  where  such 
order  had  been  given.^  The  order  must  be  given  by  the  em- 
ployer or  his  representative  acting  with  due  authority,  though  it 
may  reach  the  employee  through  an  intermediary ;  it  must  also 
be  the  cause  of  the  action  which  resulted  in  the  injury  and  it 
must  be  of  itself  negligent  under  existing  circumstances.*  When 
these  conditions  are  met,  a  presumption  is  raised  in  the  em- 
ployee's favor,  either  that  he  was  excusably  ignorant  of  the 
risks  to  which  his  obedience  exposed  him  or  that  his  action  was 
in  some  degree  coerced,  so  that  the  employer's  customary  de- 
fenses of  assumed  risk  and  of  contributory  negligence  are  pro- 
portionately, though  not  absolutely,  negatived.     If  the  order 

»  Bodwell  V.  Mfg.  Co.,  70  N.H.  390,  47  Atl.  613. 

»  Counaell  v.  Hall,  145  Maaa.  468,  14  N.E.  530 ;  Virginia  <fc  N.C.  V7heel  Co.  v. 
Chalkley,  supra. 

»  Haley  v.  Civsc.  142  Mass.  316,  7  N.  E.  877. 

<  Patterson  v.  Pittsburg  &  C.  R.  Co.,  70  Pa.  389,  18  Am.  Rep.  412  ;  Richmond 
&  D.  R.  Co.  V.  Rudd,  88  Va.  648,  14  S.E.  361. 


174  LAW  OP  THE  EMPLOYMENT  OP  LABOR 

does  not  direct  exposure  to  other  than  the  ordinary,  assumed 
risks,  no  negligence  can  be  charged  to  the  master  in  connection 
therewith.  Neither  do  the  courts  hold  him  negligent  where  he 
was  ignorant,  actually  and  without  fault,  of  the  dangers  to 
which  a  servant  would  be  exposed  by  obedience.  But  where 
the  employer  knew  of  the  danger  and  failed  to  warn  the  servant, 
and  still  more  where  the  servant  was  both  ignorant  and  incapa- 
ble, physically  and  mentally,  of  safely  performing  the  work 
directed,  the  order  will  be  held  negligent  and  the  employee  will 
be  entitled  to  recover  for  resulting  injuries. 

Section  93.  Assurances  of  Safety.  —  In  connection  with  a 
direct  order,  or  in  response  to  some  complaint  or  inquiry  of  the 
employee,  an  employer  may  give  assurances  of  the  employee's 
safety.  This  may  be  in  the  form  of  a  statement  that  the  work 
does  not  involve  danger  or  that  the  workman  will  be  protected 
in  its  performance.  Where  such  an  assurance  is  given  by  an 
authorized  person,  and  it  is  negligently  given,  so  that  the  em- 
ployee is  thereby  induced  to  do  work  or  to  enter  a  place  other 
than  would  probably  have  been  the  case  apart  from  the  assur- 
ance, the  employee  will  not  be,  as  a  matter  of  law,  chargeable 
with  either  an  assumption  of  the  risk  or  with  contributory  neg- 
ligence if  injury  results.^  This  rule  is  subject  to  the  same  quali- 
fications, on  grounds  of  the  actual  knowledge  of  the  employee 
and  his  going  into  places  of  obvious  danger,  as  have  been  set 
forth  in  other  connections.^  Yet,  inasmuch  as  the  law  regards 
the  employer's  knowledge  of  the  conditions  of  the  employment 
as  superior  to  that  of  the  employee,  it  considers  his  assurance  of 
safety,  especially  when  accompanied  by  an  order  to  proceed,  to 

»  Larson  v.  Haglin,  103  Minn.  257,  114  N.W.  958. 

»  Atlantic  C.  L.  R.  Co.  &  Beazley,  54  Fia.  311,  45  So.  761. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         175 

be  sufficient  warrant  for  the  employee  to  lay  aside  his  scruples 
and  to  proceed  with  perhaps  less  vigilance  than  he  would  have 
otherwise  exercised. 

Section  94.  Variation  of  Scope  and  Course  of  Employment.  — 
The  principles  controlling  the  liability  of  the  employer  have 
been  considered  only  in  their  application  to  cases  where  the  in- 
jury was  received  by  a  servant  engaged  in  the  duties  for  which 
he  was  specifically  or  impliedly  hired.  If  the  employee  leaves 
his  customary  work  voluntarily  and  goes  where  he  has  no  right 
to  be  or  undertakes  to  use  machinery  which  it  is  not  his  business 
to  use,  he  is  no  better  than  a  trespasser  to  whom  his  master  owes 
no  duty.*  Acquiescence  by  the  employer  in  the  conduct  of 
the  employee  may  be  construed,  however,  as  extending  the 
scope  of  employment  to  the  new  line  of  duties,  carrying  the 
corresponding  mutual  obligations.  Where  the  act  is  for  the 
employer's  benefit  it  may  be  decided  as  a  matter  of  fact  that 
it  was  reasonably  a  part  of  the  employee's  duty,  though  in  the 
absence  of  both  command  and  acquiescence  recovery  would  be, 
to  say  the  least,  doubtful. 

The  case  is  different  where  there  is  a  specific  direction  from 
the  employer  or  other  competent  person  ordering  a  temporary 
departure  from  the  contractual  lines  of  duty.  The  risks  inci- 
dent to  the  new  employment  are  in  a  sense  extraordinary,  as 
they  are  outside  of  the  regular  line  of  duty  and  were  not  as- 
sumed under  the  contract  relative  thereto.  The  elements  neces- 
sary to  a  recovery  in  case  of  injury  resulting  from  the  under- 
taking of  such  work  are:  that  the  departure  from  the  regular 

>  Stagg  V.  Edward  Western  Tea  &  Rpice  Co..  169  Mo.  489.  69  R.W.  391 : 
Green  v.  Braincrd  &  N.  M.  R.  Co..  85  Minn.  318,  88  N.W.  974 ;  Stodden  v.  Mfg. 
Co..  138  Iowa  398,  116  N.W.  116. 


176  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

employment  should  be  substantial;  that  it  should  be  in  obedi- 
ence to  the  orders  of  a  competent  person;  and  that  the  order 
given  be  negligent.^  The  mere  fact  that  the  work  was  not  that 
for  which  the  employee  contracted  is  not  enough,  since  a  com- 
mand of  the  employer  and  obedience  without  objection  by  a 
person  of  mature  years  and  ordinary  capacity  present  in  them- 
selves no  conditions  of  culpability.  If,  however,  the  master 
knew  of  some  unfitness  on  the  part  of  the  servant  or  of  some 
increased  danger  in  the  new  situation  of  which  the  employee 
was  uninformed,  the  giving  of  the  order  may  be  considered  as 
negligent.  In  the  absence  of  grounds  on  which  to  support  the 
charge  of  negligence,  workmen  will  generally  be  considered  as 
assuming  the  risk  of  the  new  undertaking,  in  so  far  as  they  are 
known  or  are  of  that  open  and  patent  character  that  charges  a 
person  of  ordinary  intelligence  with  a  knowledge  of  them.^ 

Contributory  negligence  is  not  ordinarily  allowed  as  a  defense 
to  an  employer  giving  orders  for  a  departure  from  the  usual  line 
of  service,  the  reason  therefor  being  practically  that  given  above 
where  the  question  of  obedience  to  direct  orders  was  discussed, 
i.e.,  that  a  person  will  not  be  heard  to  say  that  it  is  negligence 
to  carry  out  his  own  orders.  One  cannot,  however,  enter  upon 
a  work  involving  obvious  and  extreme  risks  and  claim  the  em- 
ployer's protection  in  so  doing,  nor  can  he  enter  on  work  for 
which  he  knows  himself  to  be  essentially  unfitted  but  as  to 
which  he  makes  no  protest  or  objection.  Still  the  presumption 
that  the  employer  is  better  informed  as  to  the  conditions  of  the 
work  and  the  necessary  qualifications  for  doing  it  properly,  and 
the  rule  of  the  customary  duty  of  obedience  to  a  superior,  will 
serve  to  relieve  the  employee  even  in  such  cases. 

»  Galveston  Oil  Co.  c.  Thompson,  76  Tex.  235,  13  S.W.  60. 
«  Felton  V.  Girardy,  43  C.C.A.  439.  104  Fed.  127. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         177 

The  variety  of  facts  involved  in  cases  presenting  the  question 
of  course  of  employment  is  so  great  that  it  would  practically 
require  an  enumeration  of  the  decisions  to  present  the  attitude 
of  the  courts  thereon.  The  general  rule  has  been  mentioned, 
i.e.,  that  the  employer  is  not  liable  for  injuries  incurred  by  em- 
ployees going  beyond  the  scope  of  their  employment.  They 
approximate  the  condition  of  volunteers,  with  whom  they  are 
sometimes  classed.  By  the  term  "volunteers"  is  meant  per- 
sons not  in  the  service  of  the  employer  prior  to  their  engaging, 
without  authorization,  in  the  employment  at  which  they  received 
the  injury  complained  of,  and  their  situation  is  in  general  no 
better  than  that  of  trespassers.  They  are  held  to  have  assumed 
the  hmitations  of  servants  without  acquiring  the  right  to  claim 
the  performance  of  a  master's  duties  toward  them.^  They  will 
be  protected  from  wanton  injuries  at  the  hands  of  the  regular 
employees,  however,^  and  the  circumstances  may  be  such  that 
they  will  be  held  to  warrant  a  service  rendered  at  the  invitation 
of  persons  not  ordinarily  authorized  to  hire  employees  so  as  to 
give  to  injured  volunteers  a  right  to  recover.^  Or  it  might  be 
said  that  the  situation  of  the  persons  so  employed  is  modified 
so  that  they  are  no  longer  regarded  as  volunteers,  at  least  not  as 
trespassers. 

The  reason  for  the  rule  as  to  volunteers  is  that  no  one  can  be 
subjected  to  the  obligations  of  an  employer,  which  are  the  result 
of  contract,  without  his  consent  thereto,  either  express  or  im- 
plied.    This  being  the  case,  the  situation  of  a  person  under- 

»  Langan  v.  Tyler,  114  Fed.  716  (C.C.A.). 

>  Kentucky  C.  R.  Co.  r.  Gastineau.  83  Ky.  119;  Evarta  r.  St.  Paul,  M.  & 
M.  R.  Co..  56  Minn.  141,  57  N.W.  459. 

»  Bradley  r.  New  York  C.  R.  Co.,  62  N.Y.  99 ;  Barstow  r.  Old  Colony  R.  Co., 
143  Mass.  535,  10  N.E.  255. 
N 


178  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

taking  to  render  service,  either  on  his  own  motion  or  at  the 
invitation  of  an  unauthorized  person,  gains  nothing  from  the 
fact  that  the  danger  was  not  appreciated. 

Section  95.  Details  of  Work.  —  A  general  limitation  of  the 
obligations  of  the  employer  is  to  be  found  in  the  rule  that  he  is 
not  bound  to  supervise  the  purely  operative  details  of  his  em- 
ployees' undertakings.  He  will  not  be  responsible,  therefore, 
for  merely  transitory  dangers,  "existing  only  on  the  single  oc- 
casion when  the  injury  was  sustained,  and  due  to  no  fault  of 
plan  or  construction,  or  lack  of  repair,  and  to  no  permanent 
defect  or  want  of  safety  in  the  defendant's  works,  or  in  the 
manner  in  which  they  had  been  ordinarily  used."  ^  So,  also,  if 
the  danger  arises  in  the  progress  of  the  work  and  is  one  of  the 
understood  conditions  of  such  progress,  no  liability  attaches 
to  the  employer. 

The  improper  use  of  suitable  instrumentalities,  or  failure  to 
use  those  furnished,  erroneous  choice  of  methods  of  work,  or 
improper  orders  and  assignments  of  subordinates  to  duty  are 
acts  of  a  superior,  for  which  the  employer  will  not  in  general  be 
held  responsible.^  In  order  that  the  employer  may  be  so  re- 
lieved, however,  it  has  been  held  to  be  necessary  that  the  in- 
jured employee  should  have  knowledge  of  his  superior's  lack  of 
authority  in  respect  of  the  order  given.^  In  the  same  category  are 
found  the  giving  of  signals,  the  transmission  of  orders,  and  the 
manipulation  of  instrumentalities  (e.g.,  cars  on  railway  tracks) 
during  the  progress  of  work.^  The  adjustment  of  temporary 
structures  and  appliances  used  in  the  course  of  the  work  are 
within  the  rule  of  nonliability. 

»  Meehan  v.  Spiers  Mfg.  Co.,  172  Mass.  375,  52  N.E.  518. 

»  CuUen  V.  Norton.  126  N.Y.  1,  26  N.E.  905. 

« Waiczenko  v.  Oxford  Paper  Co.,  106  Me.  108,  75  Atl.  328. 

*  Martin  v.  Atchison,  T.  &  S.  F.  R.  Co.,  166  U.S.  399,  17  Sup.  Ct.  603. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         179 

The  reverse  has  been  held  where  the  appHance  causing  the 
injury  was  furnished  by  the  employer  himself,  where  there  was 
an  implied  undertaking  that  the  appliance  furnished  should  be 
in  a  completed  condition,  where  the  employer  failed  to  furnish 
suitable  material  for  the  preparation  of  an  instrumentaUty, 
where  the  employee  did  not  have  free  choice  in  the  selection  of 
materials,  and  where  the  danger  resulted  from  conditions  which 
might  properly  be  classed  as  permanent. 

Section  96.  Contracts  with  Labor  Organizations.  —  A  factor 
of  minor  importance  hitherto,  but  involving  possibilities  of 
considerable  moment,  is  one  appearing  in  connection  with  con- 
tracts in  which  associations  of  workmen  retain  for  themselves 
the  right  to  indicate  the  employment  of  certain  persons  as  fel- 
low-workmen, foremen,  or  for  the  performance  of  special  duties 
in  connection  with  the  emplo3''er's  undertaking  Such  a  contract 
operates  as  a  restriction  on  the  employer's  right  to  freely  con- 
tract for  and  direct  the  services  of  his  employees,  and  in  equal 
measure  diminishes  his  liability  for  their  actions.  Thus,  where 
a  contractor  deals  with  representatives  of  an  organization,  who 
furnish  him  the  desired  number  of  men,  with  a  foreman,  none  of 
them  being  of  his  selection,  he  will  not  be  held  responsible  for 
the  injury  of  a  workman  resulting  from  the  negligence  of  the 
foreman ;  ^  and  the  same  view  was  taken  in  a  case  involving  the 
emplojonent  of  a  shot-firer  by  the  members  of  a  union  made  up 
of  the  employees  in  a  minc.^  A  contrary  conclusion  was  reached 
in  a  case  involving  much  the  same  conditions,  the  court  saying 
that  it  was,  in  any  case,  incumbent  on  the  employer  to  make 
reasonable  effort  to  ascertain  the  competency  and  fitness  of  an 

»  Fanner  v.  Kearney,  115  La.  722.  39  So.  967. 

»  Edward's  Admr.  v.  Lam.,  132  Ky.  32,  119  S.W.  175. 


180  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

employee  requiring  special  qualifications,  regardless  of  his  con- 
tract with  the  association ;  ^  in  view  of  the  nature  of  the  contract 
and  the  clear  intention  of  the  parties  to  secure  to  the  union  the 
ordering  of  the  very  details  involved  in  the  arrangement,  it 
would  seem  that  the  better  reason  sustains  the  views  of  the 
courts  of  Louisiana  and  Kentucky. 

Section  97.  Employers'  Insurance  against  Liahility.  —  Em- 
ployers' liability  insurance  is  a  form  of  insurance  by  which  the 
insuring  company  assumes  either  the  liability  of  the  employer 
for  injuries  to  his  employees,  or  the  duty  of  making  good  the 
losses  of  the  employer  on  account  of  such  liability  The  com- 
pany usually  agrees  to  undertake  the  defense  in  case  action  is 
brought  in  a  court  of  law,  and  conditions  in  the  policy  as  to 
notice  of  accidental  injuries  and  of  proposed  suits  must  be  com- 
plied with ;  2  though  the  courts  will  give  a  reasonable  con- 
struction to  the  language  used.^  Where  the  policy  limits  the 
company's  liability  to  a  reimbursement  of  sums  paid  out  by  the 
insured  employer  on  account  of  damages  paid  after  trial  of  the 
issue,  no  action  lies  by  an  employee  of  an  absconding  employer,* 
nor  an  insolvent  one,^  since  it  is  the  employer  and  not  the  em- 
ployee who  is  insured,  and,  no  payment  having  been  made  by 
the  former,  no  liability  under  the  policy  rests  on  the  company; 
or,  as  said  in  another  case,  such  a  policy  is  not  a  contract  of 
insurance  against  liability,  but  of  indemnity  against  loss  by 

1  Pearson  v.  Steamship  Co..  61  Wash.  560,  99  Pac.  753. 

>  Deer  Trail  Consol.  Mining  Co.  v.  Maryland  Casualty  Co.,  36  Wash.  46,  78 
Pac.  135. 

»  Columbia  Paper  Stock  Co.  v.  Fidelity,  etc.,  Co.  of  New  York,  104  Mo.  App. 
157.  78  S.W.  320. 

*  Connolly  v.  Bolster,  187  Mass.  266,  72  N.E.  981. 

»  Carter  c.  iEtna  Life  Ins.  Co.,  76  Kan.  275,  91  Pac.  178. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         181 

reason  of  liability.'  The  company's  contract  to  defend  in  an 
action  against  an  employer  is  valid  and  its  interest  is  sufficient 
to  protect  it  against  the  charge  of  wrongfully  maintaining  the 
employer  in  the  suit  against  hira.- 

In  case  of  the  insolvency  of  an  insured  employer,  an  assign- 
ment of  assets  is  equivalent  to  a  settlement  of  a  perfected  claim 
against  himself,  so  far  as  the  company  is  concerned,  and  it  be- 
comes at  once  liable  for  the  pro  rata  sum  that  the  judgment  of 
the  injured  employee  would  produce  in  the  settlement  of  the 
estate  of  the  insolvent,  and  no  more ;  the  injured  employee  may 
by  a  cross-bill  in  action  against  the  company  by  the  trustee 
secure  the  payment  of  such  amount  to  himself.^  A  settlement 
by  the  company  made  in  good  faith  with  an  employer  for  a 
judgment  obtained  against  him  cuts  off  all  recovery  as  against 
the  company,  however,  even  though  it  transpires  that  the  em- 
ployer was  in  fact  insolvent  at  the  time,  and  had  paid  nothing 
on  the  judgment ;  "•  a  fortiori,  a  settlement  of  a  judgment  against 
an  insolvent  employer  by  the  payment  by  him  of  an  agreed 
reduced  sum,  such  sum  being  known  to  the  employee  as  coming 
from  the  insuring  company,  will  prevent  any  further  recovery 
from  the  company  by  the  employee.^ 

If  the  policy  insures  the  employer  against  liability  on  account 
of  injuries  to  employees,  however,  the  company  assuming  the 
defense  in  legal  proceedings  and  settlement  of  any  loss ;  or  if  it 
stipulates  that  the  company  shall  pay  "all  damages  with  which 
the  insured  might  be  legally  charged,  or  required  to  pay  or  for 

»  Frye  r.  Gas  &  Electric  Co.,  97  Me.  241,  54  Atl.  395. 

»  Breeden  v.  Frankfort,  etc..  Ins.  Co.,  220  Mo.  327,  119  S.W.  576. 

»  Moses  r.  Travelers'  Ins.  Co.,  63  N.J.  Eq.  260,  49  Atl.  720. 

«  Kinnan  v.  Fidelity  «fe  Casualty  Co.,  107  111.  App.  407. 

•  Breeden  r.  Frankfort,  etc.,  Ins.  Co.,  supra. 


182  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

which  it  might  become  liable,"  the  contract  inures  directly  to 
the  benefit  of  the  employee  to  such  an  extent  that  he  may,  after 
judgment  against  the  employer  and  without  waiting  for  settle- 
ment, secure  the  payment  to  himself  of  the  amount  of  the  judg- 
ment by  proceedings  in  garnishment  against  the  company,^ 
and  the  fact  of  the  employers'  making  an  assignment  in  bank- 
ruptcy before  the  suit  was  begun  does  not  reduce  or  otherwise 
affect  the  claim  of  the  employee  against  the  ompany,^  since  the 
liability  is  fixed  on  the  happening  of  the  injury  giving  rise  to  the 
claim,  even  though  the  amount  thereof  has  not  yet  been  deter- 
mined.' 

Where  the  employer  takes  out  a  blanket  policy,  and  separate 
certificates  are  issued  to  the  individual  employees,  from  whose 
wages  deductions  are  made  by  the  company  for  the  payment  of 
premiums,  the  failure  of  the  insurance  company  to  pay  the 
amount  of  the  policy  entails  no  obligation  on  the  employer, 
only  the  company  being  liable.* 

A  policy  covering  accidental  injuries  was  held  to  require  an 
insurance  company  to  reimburse  an  employer  who  had  been 
compelled  to  pay  damages  on  account  of  bodily  disease  con- 
tracted by  an  employee  who  was  put  to  work  in  an  insanitary 
employment ;  ^  a  policy  will  not  be  construed  to  extend  to 
classes  of  employees  hired  during  the  term  of  its  existence,  but 
engaged  in  a  different  kind  of  employment  from  that  contem- 

1  Hoven  v.  Employers'  Liability  Assurance  Corp.,  93  Wis.  201,  67  N.W.  46; 
Anoka  Lumber  Co.  v.  Fidelity  &  Casualty  Co.,  63  Minn.  286,  65  N.W.  353 ; 
Pickett  V.  Fidelity  &  Casualty  Co.,  60  S.C.  477,  38  S.E.  160. 

*  Anoka  Lumber  Co.  v.  Fidelity  &  Casualty  Co.,  supra. 

'  Boston  &  A.  R.  Co.  v.  Mercantile  Trust  &  Deposit  Co.,  82  Md.  535,  34  Atl. 
778 ;  Ross  ».  Am.  Emp.  Liability  Ins.  Co.,  56  N.J.  Eq.  41,  38  Atl.  22. 

*  Carpenter  v.  Chicago  &  E.  I.  R.  Co.,  21  Ind.  App.  88,  51  N.E.  493. 

*  Columbia  Paper  Stock  Co.  v.  Fidelity,  etc.,  Co.  of  New  York,  supra. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES         183 

plated  by  its  terms,^  but  employment  necessarily  incidental  to 
the  operations  embraced  by  the  policy  will  be  held  to  be  covered 
thereby,  even  though  not  strictly  of  the  class  of  operations 
described  in  it.^  On  the  other  hand,  the  similarity  of  construc- 
tion work  to  repair  work  will  not  bring  the  former  within  the 
provisions  of  a  policy  intended  to  cover  only  the  latter.'  If  the 
contract  of  insurance  stipulates  that  the  company  will  not  be 
liable  for  injuries  resulting  from  the  employer's  failure  to  main- 
tain the  safety  devices  and  appliances  prescribed  by  law,  the 
company  cannot  withdraw  from  the  defense  of  an  action  on  the 
mere  charge  of  such  failure,  but  must  proceed  until  the  question 
is  determined  in  the  course  of  trial.'*  Such  a  provision  in  a 
policy  is  not  repugnant  to  a  general  undertaking  to  indemnify 
the  insured  employer  against  loss  from  common  law  or  statutory 
liability  to  his  employees.^  Nor  will  the  provision  in  a  policy 
prohibiting  compromises  by  employers  bar  the  emploj'or's 
claim  to  an  indemnity  where  the  company  denied  its  liability 
and  refused  to  defend,  and  the  employer  compromised  the  claim 
against  him.^  Where  the  company  assumes  the  defense  of  an- 
action  and  conducts  it  negligently,  to  the  loss  of  the  employer, 
it  is  liable  to  him  for  the  loss  sustained,'' 

>  Wollman  v.  Fidelity  &  Casualty  Co.,  87  Mo.  App.  677. 

*  Fidelity  &  Casualty  Co.  of  New  York  v.  Lone  Oak  Cotton  Oil  &  Gin  Co., 
35  Tex.  Civ.  App.  2G0,  80  S.W.  541  (carpenter  employed  to  install  machinery  in  a 
cotton  oil  mill)  ;  Hoven  v.  Employers'  Liability  As.surancc  Corp.,  93  Wis.  201,  67 
N.W.  46  (policy  covering  operations  connected  with  business  of  iron  and  steel 
works  embraces  construction  of  building  for  use  of  employer  in  business). 

'  Home  Mixture  Guano  Co.  v.  Insurance  Co.,  176  Fed.  600. 

*  Glens  Falls  Portland  Cement  Co.  v.  Travelers'  Ins.  Co.,  162  N.Y.  399,  56 
N.E.  897. 

*  Chicago-Coultervillc  Coal  Co.  v.  Fidelity  &  Casualty  Co.,  130  Fed.  957. 
•St.  Louis  Dressed  Beef,  etc.,  Co.  v.  Maryland  Casualty  Co.,  201  U.S.  173,26 

Sup.  Ct.  400.  7  Attleboro  Mfg.  Co.  v.  Insurance  Co.,  171  Fed.  495. 


184  LAW  OF  THE   EMPLOYMENT  OP  LABOR 

The  stipulation  that  the  insuring  company  shall  be  liable  for 
only  those  damages  with  which  the  employer  may  be  charged 
after  a  compliance  with  the  law  would  of  itself  point  toward 
nonliability  where  a  person  was  employed  contrary  to  statute, 
though  the  employer  might  be  himself  liable.  Policies  contain- 
ing a  provision  that  the  company  is  not  liable  for  injuries  to 
children  employed  in  violation  of  minimum  age  laws  therefore 
allow  no  recovery  in  case  such  an  illegally  employed  person  is 
injured,  though  judgment  runs  against  the  employer.^ 

The  states  of  Illinois  ^  and  South  CaroUna '  have  laws  looking 
to  the  formation  of  mutual  insurance  companies  by  employers, 
with  a  view  to  affording  members  insurance  or  indemnity  in 
cases  of  loss  on  account  of  accidents  occurring  in  connection 
with  their  business.  The  Illinois  law  restricts  membership  to 
persons  engaged  in  the  same  class  of  manufacturing  or  mining, 
and  requires  not  less  than  twenty  incorporators. 

Section  98.  Insurance  of  Employees.  —  A  law  of  Maryland  * 
provided  for  cooperative  insurance,  in  the  form  of  a  fund  to 
which  steam  and  street  railway  companies,  owners  of  mines  and 
quarries,  and  municipalities  engaged  in  sewer  construction  and 
similar  work  might  contribute  according  to  a  fixed  scale  adjusted 
to  the  nature  of  the  employment.  An  amount  equal  to  one  half 
the  payments  might  be  withheld  from  the  wages  of  the  employees 
after  notice.  The  resulting  fund  was  to  be  administered  by 
the  insurance  commissioner  of  the  state,  only  cases  of  accidental 
death  being  provided  for  by  the  payment  of  a  uniform  sum. 
The  law  contained  a  provision  that  contributors  to  the  fund  were 

1  Mt.  Vernon  Woodberry  Duck  Co.  v.  Insurance  Co.,  Ill  Md.  561,  75  Atl. 
105  ;  Frank  Unnewehr  Co.  v.  Insurance  Co.,  176  Fed.  16,  99  CCA.  490. 
»  R.S.,  ch.  73,  sees.  309,  ei  seq. 
» Acts  1903,  No.  40.  *  Acts  1902,  ch.  139. 


LIABILITY  OF  EMPLOYERS  FOR  INJURIES  185 

to  be  exempt  from  all  other  forms  of  liability,  thus  depriving  the 
employee  of  his  right  of  action  for  damages  either  at  common 
law  or  under  the  statutes  of  the  state ;  and  on  this  ground  the 
law  was  held  to  be  unconstitutional.^ 

A  later  law  of  the  same  state  ^  undertakes  to  provide  a  co- 
operative insurance  plan  for  coal  and  clay  miners  in  certain 
counties  of  the  state.  Employers  and  employees  are  to  make 
equal  contributions  to  a  fund  which  is  to  be  collected  and  held 
by  the  treasurers  of  the  counties.  Administration  devolves  on 
the  county  commissioners.  Fixed  amounts  are  named  for 
compensation  in  cases  of  death,  of  maiming  of  various  described 
kinds,  for  injuries  not  resulting  in  maiming,  and  for  medical 
and  burial  expenses.  Suits  for  damages  may  be  brought,  but 
doing  so  bars  compensation  rights,  and,  conversely,  the  accept- 
ance of  compensation  bars  the  right  to  sue.  A  somewhat  similar 
law  has  been  enacted  by  the  legislature  of  Montana,'  applicable 
to  workmen,  laborers,  and  employees  in  and  around  coal  mines 
and  coal  washers,  excepting  office  employees,  superintendents, 
and  general  managers.  Insurance  under  this  law  is  mandatory, 
the  funds  to  be  provided  by  deductions  from  the  wages  of  all 
employees  coming  within  its  provisions,  and  by  fixed  payments 
by  the  employers  based  on  the  amount  of  coal  mined  per  month. 
The  fund  is  to  be  administered  by  the  state  treasurer.  Injured 
employees  or  their  representatives  may  sue  to  recover  damages 
independently  of  the  provisions  of  the  act,  but  the  commence- 
ment of  a  suit  of  this  nature  will  operate  as  a  forfeiture  of  the 
right  to  benefits  under  the  act. 

'  Franklin  v.  United  Railway  &  Electric  Co.,  Ct.  of  Common  Pleas  of  Balti- 
more, opinion  filed  Apr.  27,  1904. 

» Acta  1910,  oh.  153  (p.  484).  •  Acta  1909,  ch.  67. 


186  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

Of  broader  scope,  covering  in  fact  the  principal  lines  of  in- 
dustrial employment,  is  the  workmen's  insurance  law  of  Wash- 
ington ^  which  requires  all  employers  in  designated  industries, 
classed  as  "extra-hazardous,"  to  pay  into  a  state  accident  fund 
certain  amounts  as  premiums.  These  premiums  are  based  on 
the  nature  of  the  employment  and  the  number  of  workmen 
therein,  and  constitute  a  fund  from  which  payments  are  to  be 
made  to  workmen  suffering  from  injury  caused  by  accident 
occurring  in  the  course  of  employment.  Employers  in  other 
industries  than  those  designated  may  elect  to  adopt  the  pro- 
visions of  the  insurance  law,  whereupon  they  are  relieved  from 
other  liability.  The  legislatures  of  Massachusetts ^  and  Ohio' 
have  enacted  laws  of  similar  general  import  with  that  of  Wash- 
ington, though  not  compulsory,  and  applicable  to  all  classes  of 
employers  who  accept  their  provisions.  In  Ohio,  the  classifica- 
tion of  risks  and  the  fixing  of  premium  rates  are  committed 
to  a  state  liability  board,  which  is  charged  with  the  administra- 
tion of  the  law  generally,  while  in  Massachusetts  a  state  in- 
dustrial accident  board  administers  the  law.  While  employers 
may  exercise  their  choice  in  accepting  the  provisions  of  the  stat- 
ute, if  they  fail  to  do  so,  they  are  liable  for  damages  resulting 
from  injuries  to  their  workmen,  and  cannot  offer  as  defenses 
either  assumption  of  risks,  fellow-service,  or  contributory  neg- 
ligence. The  Massachusetts  act  was  pronounced  constitu- 
tional in  an  advisory  opinion  of  the  supreme  court  of  the 
state,*  in  which  were  considered  both  the  abrogation  of  the 
common  law  defenses  and  the  adoption  of  the  voluntary  in- 
surance scheme  as  a  substitute  for  liability. 

»  Acts  1911,  ch.  74.  » Act  approved  July,  28,  1911. 

»  Act  approved  June  15,  1911.  *  Opinion  delivered  July  24,  1911. 


CHAPTER  VIII 

workmen's  compensation  laws 

Section  99.  Federal  Compensation  Law  of  1908.  —  The 
British  law  of  employers'  liability,  both  as  construed  by  the 
courts  of  England  in  common  law  actions  and  as  enacted  in  the 
legislation  of  1880,  has  been  of  large  influence  in  directing  the 
course  of  action  in  this  country,  both  legislative  and  judicial. 
At  the  present  time,  the  principles  that  control  in  the  United 
States  are  of  comparatively  small  and  diminishing  importance 
in  Great  Britain,  on  account  of  the  adoption  in  that  country  in 
1897  of  a  compensation  act  by  virtue  of  which  the  injured  em- 
ployee secures,  not  a  right  of  action  for  damages,  but  a  grant 
of  compensation  payable  by  the  proprietor  of  the  business  in 
which  the  employee  was  injured.  This  principle,  generally 
adopted  by  more  than  a  score  of  the  industrial  countries  of  the 
world,  received  recognition  to  a  limited  extent  by  an  act  of 
Congress  of  May  30,  1908,^  which  grants  to  "any  person  em- 
ployed by  the  United  States  as  an  artisan  or  laborer  in  any  of 
its  manufacturing  establishments,  arsenals,  or  navy  yards,  or 
in  the  construction  of  river  and  harbor  or  fortification  work  or 
in  hazardous  employment  on  construction  work  in  the  reclama- 
tion of  arid  lands  or  in  the  management  and  control  of  the  same, 

>  Acts  1907-1908,  ch.  236  (36  Stat.  556). 
187 


188  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

or  in  hazardous  employment  under  the  Isthmian  Canal  Com- 
mission," compensation  for  injuries  received  in  the  course  of  his 
employment  not  due  to  his  own  negligence  or  misconduct.  The 
amount  of  compensation  is  the  rate  of  pay  that  would  have  been 
received  by  the  employee  if  he  had  continued  to  be  employed, 
this  point  being  determined  altogether  by  the  employing  office. 
This  provision  of  the  law  gives  the  injured  employee  the  benefit 
of  any  increase  affecting  employees  of  his  group  and  class  during 
the  continuance  of  his  compensation  payments.  Payments 
continue  during  disability,  but  for  a  period  hmited  to  one  year 
from  the  beginning  of  the  disability  caused  by  the  injury.  In 
case  the  injury  results  in  death,  the  widow,  child  or  children 
under  sixteen  years  of  age,  or  a  dependent  parent,  are  entitled 
to  compensation  of  the  same  amount  as  would  have  been  pay- 
able to  the  employee  if  he  had  survived.  No  compensation  is 
provided  unless  the  injuries  cause  disability  for  more  than  fifteen 
days.  Claims  must  be  filed  within  a  "reasonable  time,"  the 
statute  limiting  the  time  for  filing  death  claims  to  not  more  than 
ninety  days  after  the  death  on  account  of  which  the  claim  is 
made.  Injured  persons  receiving  compensation  must  be  ex- 
amined as  often  as  directed  by  the  Secretary  of  Commerce  and 
Labor,  at  least  once  every  six  months.  In  practice  this  exami- 
nation is  sometimes  waived  where  the  disability  is  obviously 
permanent,  but  the  effect  of  the  provision  is  usually  to  limit  ap- 
provals of  claims  to  six-month  periods,  subject  to  extension  on 
a  proper  showing  at  the  expiration  of  the  period.  Where  a 
person  is  only  partially  incapacitated,  and  is  able  to  do  light 
work,  but  not  to  resume  the  duties  of  his  regular  employment, 
it  has  been  held  that  the  claim  for  compensation  may  be  ap- 
proved for  the  period  of  a  year,  even  though  there  may  be  some 


WORKMEN'S  COMPENSATION  LAWS  189 

employment  during  the  time,  inasmuch  as  he  is  entitled  to  a 
year's  wages  at  the  old  rate,  and  is  therefore  entitled  to  the  pro- 
tection of  such  an  approval. 

The  administration  of  the  act  is  committed  by  the  act  itself 
to  the  Secretary  of  Commerce  and  Labor,  who  is  authorized  to 
make  necessary  rules  for  the  award  and  payment  of  the  benefits 
accruing  under  its  provisions.  He  is  also  authorized  to  deter- 
mine all  questions  of  negligence  or  misconduct,  so  that  the  law 
is  practically  removed  from  the  field  of  litigation,  its  construc- 
tion by  the  Secretary  on  the  points  most  frequently  causing 
dispute  not  being  subject  to  judicial  review.  The  doctrine  of 
assumed  risks  is  absolutely  eliminated,  as  is  the  defense  of 
fellow-service,  the  trade  risk  falling  on  the  beneficiary  of  the 
undertaking,  where  it  would  seem  properly  to  belong  in  every 
instance ;  and  no  employee  is  held  accountable  for  the  mis- 
conduct of  a  fellow,  of  whose  actions  he  is  often  inevitably 
ignorant,  and  over  whom  he  has  usually  no  power  of  control, 
even  indirectly. 

The  sundry  civil  bill  for  the  year  1912  (act  of  March  4,  1911, 
Public,  No.  525),  extended  the  benefits  of  this  law  to  all  em- 
ployees under  the  Isthmian  Canal  Commission,  eliminating  the 
question  of  hazardous  employment,  and  provided  that  the  ad- 
ministration of  the  law  in  its  application  to  such  employees 
should  devolve  upon  the  chairman  of  the  Commission.  It  also 
extended  the  time  for  filing  death  claims  to  one  year. 

In  admini.stering  the  law,  a  liberal  construction  has  been 
adopted,  following  in  general  the  definitions  and  rulings  of  the 
common  law  as  to  the  terms  "artisan  or  laborer,"  "course  of 
employment,"  "negligence  or  misconduct,"  and  "dependence," 
but  relaxing  in  a  measure  the  rule  as  to  what  should  be  con- 


190  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

sidered  negligence  of  such  nature  as  to  bar  a  claim,  with  a  view 
to  carrying  out  the  evident  beneficial  intent  of  the  act.  Illegit- 
imate children  are  held  to  be  entitled  to  the  benefits  of  the  stat- 
ute, as  it  is  not  one  relating  to  inheritance,  and  the  statute  uses 
the  term  "child  or  children  "  in  an  unqualified  and  presumably 
in  a  popular  sense,  as  offspring.  Trade  diseases,  as  lead  poison- 
ing, do  not  support  a  claim  for  compensation,  since  the  idea  of 
the  word  "accident "  is  held  to  imply  a  more  definite  point  of 
time  than  would  be  the  case  where  cumulative  effects  are  the 
results  of  causes  operating  through  a  long  period.  Still  less  can 
compensation  be  allowed  for  cases  of  illness  caused  merely  by 
exposure  during  employment/  though  an  edema  of  the  lungs 
caused  by  inhaling  smoke  from  a  blast  in  a  tunnel,  and  an  ul- 
cerated sore  throat  resulting  from  the  inhalation  of  acid  fumes 
while  repairing  an  acid  tank,  were  held  to  be  injuries  entitling 
to  compensation ;  so  also  of  sunstroke ;  and  of  the  freezing  of 
a  workman's  feet  while  employed  in  an  exposed  place ;  and  of 
the  aggravation  of  a  chronic  appendicitis  by  a  strain  or  blow, 
leading  to  disability  which  had  not  existed  prior  to  the  accident 
causing  the  injury ;  and  in  a  case  of  disability  caused  by  a  sprain 
accompanied  by  a  rupture  of  the  synovial  sac  surrounding  the 
ligaments  of  the  wrist,  induced  by  repeated  operations  under 
conditions  causing  unusual  effort  in  the  performance  of  work, 
it  was  held  that  "within  the  language  of  the  statute,  an  em- 
ployee may  be  injured  in  the  course  of  his  employment  without 
having  suffered  a  definite  accident."  ^  An  error  of  judgment 
or  the  display  of  ignorance  in  procuring  or  following  medical 
advice  is  not  a  bar  to  the  receipt  of  compensation. 

'  28  Opinions  of  the  Attorney-General,  p.  254. 
'  27  Opinions  of  the  Attorney-General,  p.  346. 


WORKMEN'S  COMPENSATION  LAWS  191 

Presumptions  are  in  favor  of  the  claimant,  as  where  injury 
occurred  in  the  performance  of  work  under  conditions  not 
usually  attended  by  untoward  circumstances,  but  which  in  the 
particular  case  involved  injury.  A  person  with  a  preexisting 
weakness  suffering  injury  from  an  accident  that  would  not 
presumably  injuriously  affect  a  sound  man  is  entitled  to  com- 
pensation notwithstanding  his  predisposition,  if  the  accident 
was  the  actual  proximate  cause  of  the  disability.  This  extends 
to  the  case  of  a  workman  who  is  in  a  place  of  danger  in  the 
course  of  his  employment,  and  is  affected  by  epilepsy,  to  which 
he  is  subject,  and  is  injured,  the  disease  being  nothing  more  than 
a  remote  cause ;  while  the  position  of  hazard  that  makes  the 
fall  dangerous,  as  from  a  height,  or  into  a  fire,  is  a  condition  of 
employment,  and  the  injury  is  therefore  one  that  was  entitled 
to  compensation.  An  employee  engaged  as  laborer  does  not 
lose  his  status  because  of  the  fact  that  at  the  moment  of  the 
accident  causing  his  injury  he  is  employed  at  other  than  strictly 
laborer's  work ;  while  a  messenger  or  other  employee  may  be 
detailed  to  work  of  such  nature  as  to  bring  him  within  the  scope 
of  the  act.  Employees  of  contractors  of  the  government  are 
not  employees  of  the  United  States.* 

The  course  of  employment  includes  going  upon  ways  or  con- 
veyances furnished  or  maintained  for  the  purpose  of  going  to 
and  from  work.  One  injured  by  a  blast  at  the  place  where  he 
was  due  to  begin  work  within  a  few  minutes  was  present  in  the 
scope  of  his  employment,  as  was  one  who  was  on  his  way  home 
by  the  usual  route  at  the  close  of  work  and  was  injured  at  an- 
other place  than  that  of  his  own  labor ;  so  also  an  emploj^o  in- 
jured by  the  negligent  act  of  another,  while  the  former  was 

»  Following  United  States  r.  Driscoll.  96  U.S.  421. 


192  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

performing  the  required  duty  of  "ringing  in"  at  the  time  clock, 
was  entitled  to  compensation. 

The  payments  being  compensatory  in  their  nature  are  not  to 
be  regarded  as  gratuities;  if  therefore  an  injured  employee 
submits  a  claim  but  dies  before  it  is  passed  upon,  the  compensa- 
tion payable  for  the  term  of  his  disability  may  be  paid  to  his 
personal  representatives,  since  it  is  a  right  which  survives  him, 
and  does  not  die  with  him  as  does  a  right  to  a  gratuity.^  Sur- 
viving beneficiaries  must,  of  course,  submit  a  separate  claim  for 
the  period  subsequent  to  the  death,  terminating  with  the  year 
for  which  payments  are  provided. 

The  above  construction  follows  in  some  measure  the  inter- 
pretation put  upon  the  British  compensation  act,  where  ap- 
propriate ;  and  while  the  compensation  afforded  is  often  en- 
tirely inadequate,  as  in  cases  of  maiming,  permanent  disability, 
and  loss  of  life,  by  a  liberal  regard  for  the  fair  intendment  of 
the  act,  a  very  considerable  measure  of  relief  is  furnished  to 
a  class  of  employees  who  were  otherwise  practically  without 
redress. 

The  idea  of  compensation  had  already  received  recognition 
in  the  case  of  members  of  crews  of  life-saving  or  lifeboat  stations, 
who,  if  disabled  by  wound  or  injury  received  or  disease  con- 
tracted in  the  line  of  duty,  may  receive  full  pay  during  one  year, 
and,  on  approval  by  the  Secretary  of  the  Treasury,  during  a 
part  or  all  of  a  second  year ;  ^  also  in  the  case  of  railway  mail 
clerks  injured  while  on  duty,  who  continue  to  receive  pay  during 
one  year  if  the  disability  lasts  so  long.  The  personal  represen- 
tatives of  railway  mail  clerks  killed  while  on  duty,  or  dying 

•  XVI  Decisions  of  the  Comptroller  of  the  Treasury,  477. 
»  Act  of  May  4,  1882,  22  Stat.  67. 


WORKMEN'S  COMPENSATION  LAWS  193 

within  one  year  thereafter  as  a  result  of  injury  received  while 
on  duty,  receive  the  fixed  sum  of  two  thousand  dollars.^ 

Section  100.  State  Statutes,  —  With  the  exception  of  the 
cooperative  insurance  law  of  Maryland  (sec.  98),  the  state  of 
Massachusetts  was  the  first  of  the  United  States  to  enact  leg- 
islation looking  toward  the  substitution  of  compensatory  pay- 
ments in  lieu  of  actions  for  damages.^  The  law  provides  for  a 
submission  to  the  state  board  of  concihation  and  arbitration  of 
such  schemes  or  plans  as  may  be  proposed  by  employers  as 
substitutes  for  the  system  of  liabihty  existing  at  common 
and  statute  law ;  payments  are  to  be  based  on  a  percentage  of 
the  average  earnings  of  the  employees.  When  any  scheme  is 
approved  by  the  board,  the  employer  may  make  contracts  with 
his  employees  for  his  release  from  liability  at  law  by  the  pay- 
ment of  the  proposed  compensation.  It  is  not  permitted  to  an 
employer  to  make  the  employee's  assent  to  such  a  scheme 
obligatory  as  a  condition  to  securing  employment.  It  is  ob- 
vious, however,  that  the  employer  is  not  obliged  to  either  accept 
or  retain  any  employee ;  and  that  while  the  employer  would 
not,  under  the  circumstances,  assign  as  a  reason  for  the  work- 
man's nonemployment  his  unwillingness  to  enter  into  the  con- 
tract, it  might  in  fact  be  the  controlling  reason,  which  the 
employer  is  not  at  all  obliged  to  disclose.^ 

While  this  state  was  the  first  to  arrange  by  statutory  enact- 
ment for  a  scheme  of  compensation,  the  first  laws  embodying 
and  enacting  such  a  scheme  were  passed  by  the  legislature  of 

»  Act  of  May  12,  1910,  36  Stat.  3G3.  Prior  to  this  date  the  aum  of  $1000  had 
been  paid  ;  see  appropriation  act.  Act  of  April  21,  1902,  32  Stat.  115,  and  subse- 
quent appropriation  acts. 

«  Acta  1908,  ch.  489. 

» Adair  v.  United  States,  208  U.S.  161.  28  Sup.  Ct.  277. 
o 


194  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

New  York.^  The  first  statute  amends  the  former  liability  law 
of  the  state,  chiefly  by  making  any  person  exercising  control  or 
command  a  vice-principal  as  to  those  under  his  direction,  and 
by  making  the  employer  liable  for  injuries  to  the  employees  of 
a  contractor  where  injury  results  from  conditions  within  the 
control  of  the  original  employer.  Restrictions  are  also  placed 
on  the  use  of  the  defenses  of  assumption  of  risks  and  contribu- 
tory negligence.  This  statute  then  proceeds  to  enact  a  com- 
pensation scheme,  the  acceptance  of  which  is  optional  with 
employers  and  employees,  as  an  alternative  to  the  rights  and 
liabilities  existing  at  common  law  or  provided  in  the  state 
liability  law.^ 

» Acts  1910,  chs.  352,  674. 

*  The  compensation  scheme  involves  the  payment  of  death  claims  in  an 
amount  equal  to  twelve  hundred  times  the  employee's  daily  earnings,  where 
dependents  survive,  and  proportionately  reduced  amounts  if  there  are  only  par- 
tial dependents.  If  no  dependents  survive,  medical  and  burial  expenses  in  an 
amount  not  exceeding  one  hundred  dollars  are  to  be  paid.  In  cases  of  nonfatal 
accidents  resulting  in  total  incapacity,  one  half  the  average  weekly  earnings  are 
to  be  paid  during  disability  not  exceeding  eight  years.  For  partial  incapacity 
the  payment  is  to  be  equal  to  one  half  the  difference  between  the  earnings  before 
and  after  the  injury.  Payments  shall  in  no  case  exceed  ten  dollars  per  week,  and 
medical  examinations  may  be  held  from  time  to  time  at  the  employer's  expense 
to  determine  the  continuance  and  degree  of  disability. 

Employers  and  employees  accepting  the  scheme  are  to  signify  the  fact  by 
signing  and  filing  an  instrument  to  that  effect  with  the  same  formalities  as  if 
making  a  conveyance  of  real  estate,  the  agreement  to  continue  in  force  during  the 
continuance  of  the  employment  contract  unless  canceled  by  sixty  days'  notice 
in  writing  by  either  party.  The  agreement  relieves  the  employer  from  liability 
under  common  or  statute  law  unless  the  injury  was  due  to  his  failure  to  obey  an 
order  of  the  commissioner  of  labor  as  to  provisions  for  safety  or  to  his  serious 
and  willful  misconduct.  The  bringing  of  a  suit  cuts  off  all  claim  to  compensation 
under  the  plan,  and  no  right  accrues  where  the  injury  is  due  to  the  serious  or 
willful  misconduct  of  the  person  injured.  Questions  arising  under  the  compensa- 
tion plan  may  be  settled  by  agreement,  by  arbitration  as  provided  by  the  code 
of  civil  procedure,  or  by  an  action  at  law.     The  action  at  law  is  to  be  in  the  form 


WORKMEN'S  COMPENSATION  LAWS  195 

The  acceptance  of  the  provisions  of  the  second  law  was 
made  obligatory  where  they  applied.  This  statute  involves 
a  consideration  of  the  power  of  the  legislature  to  enact  a 
law  compulsorily  shifting  the  burden  of  the  risk  of  in- 
dustrial accident  from  the  employee  to  the  industry  itself, 
and  requiring  fixed  measures  of  relief  or  compensation 
for  resultant  injuries  to  be  administered  by  the  employer  with- 
out reference  to  his  personal  fault  or  negligence.  Where  only 
an  optional  or  elective  provision  exists,  both  parties  being  free 
to  choose,  it  is  a  matter  of  agreement  or  contract  and  within  the 
power  of  the  parties,  unless  this  exercise  of  their  rights  is  shown 
to  be  contrary  to  public  policy.  A  compulsory  statute,  how- 
ever, must  show  proper  justification  for  its  enactment  as  a 
matter  of  public  welfare  within  the  police  power  of  the  state. 
Prior  decisions  tending  to  support  such  a  law  exist.     Thus  it  has 

of  a  suit  on  breach  of  contract,  and  the  award,  if  in  the  claimant's  favor,  shall  be 
a  lump  sum  covering  arrears  and  prospective  payments.  No  assignment  or 
attachment  can  afifect  weekly  payments  due  under  the  plan,  nor  will  a  claim  for 
an  attorney's  fee  be  enforceable  unless  the  amount  is  approved  in  writing  by  a 
justice  of  the  supreme  court  or  by  the  justice  of  the  court  in  which  the  case  was 
tried.  The  payments  rank  as  preferred  claims  against  an  employer's  assets,  the 
same  as  unpaid  wages  for  personal  services.  Railroads  are  exempted  from  the 
operation  of  the  compensation  statute,  and  no  injury  causing  disability  of  less 
than  two  weeks'  duration  is  to  be  considered. 

The  second  act  (ch.  674)  provided  a  compulsory  compensation  scheme  for 
designated  dangerous  employments,  i.e.,  the  construction  or  demolition  of  bridges 
or  buildings  where  iron  or  steel  framework  is  used,  and  the  operation  of  elevators, 
derricks,  or  hoists  for  the  conveyance  of  materials  in  connection  therewith ; 
work  on  scaffolds  twenty  or  more  feet  in  height  in  the  construction,  alteration, 
repair  or  painting  of  buildings  or  bridges;  work  involving  danger  from  elec- 
trically charged  wires  ;  work  involving  the  use  of  explosives  as  an  instrumentality 
of  the  industry ;  railroad  employments,  including  maintenance  of  way ;  the 
construction  of  tunnels  and  subways  ;  and  all  work  carried  on  under  compressed 
air.  The  details  as  to  compensation  and  administration  are  practically  the  same 
as  in  the  case  of  the  elective  statute. 


196  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

been  held  that  legal  liability  may  be  charged  even  in  the  ab- 
sence of  fault,  thus  practically  making  the  manager  of  a  busi- 
ness an  insurer  of  the  safety  of  his  customers,  as  in  the  case 
of  a  railroad  company  and  persons  transported  by  it.^  Stat- 
utes are  constitutional  that  modify  or  abrogate  the  defenses 
of  fellow-service,  assumed  risks,  and  contributory  negligence.^ 
Such  legislation  may  go  so  far  as  to  give  the  employee  a  status 
that  is  briefly  described  in  some  statutes  as  being  the  same  as 
if  he  had  not  been  an  employee.^ 

The  validity  of  legislation  adapted  to  the  particular  character 
of  the  undertaking  has  already  been  noted,^  and  the  hazardous 
nature  of  an  employment  is  clearly  recognized  as  warranting  the 
regulation  of  its  working  conditions  by  a  measure  of  legislative 
interference  with  the  common  law  freedom  of  contract  of  the 
employer  and  employee.^  It  is  clear,  however,  that  a  compen- 
sation law  cannot  be  said  to  address  itself  in  any  direct  manner 
to  the  question  of  the  physical  conditions  of  employment,  and 
that  any  indirect  effect,  as  by  stimulating  employers  to  care  in 
order  to  lighten  the  probable  burdens  of  a  compensation  pro- 
vision, could  not  bring  the  law  within  the  class  of  safety  regu- 
lations. 

The  first  case  to  come  before  the  courts  under  the  statute  in 


1  Chicago,  R.  I.  &  P.  R.  Co.  v.  Zernecke,  59  Nebr.  689,  82  N.W.  26  ;  same  case, 
183  U.S.  582,  22  Sup.  Ct.  229  ;  Chicago,  B.  &  Q.  R.  Co.  v.  Wolfe,  187  U.S.  638,  23 
Sup.  Ct.  847. 

'  Howard  ».  Illinois  C.  R.  Co.,  207  U.S.  463,  28  Sup.  Ct.  141  (dissenting  opin- 
ion, and  cases  cited) ;  El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez,  215  U.S.  87,  30  Sup. 
Ct.  21 ;  Ives  v.  South  Buffalo  R.  Co.,  201  N.Y.  271,  94  N.E.  431. 

»  Mass.,  Acts  1909,  eh.  514,  sec.  127 ;  Me.,  Acts  1909,  ch.  258. 

« Sec.  90. 

'  Missouri  P.  R.  Co.  v.  Mackey,  127  U.S.  205,  8  Sup.  Ct.  1161 ;  TuUis  c.  R.  Co., 
175  U.S.  348,  20  Sup.  Ct.  136 ;  Holden  v.  Hardy,  169  U.S.  366,  18  Sup.  Ct.  383. 


WORKMEN'S  COMPENSATION  LAWS  197 

question  (the  law  providing  compulsory  compensation  in  cer- 
tain dangerous  employments),  was  one  of  injury  to  a  railroad 
employee  without  fault  charged  to  either  the  injured  employee 
or  the  employer,  but  merely  as  a  necessary  risk  of  the  emploj'- 
ment.  In  the  trial  and  appellate  courts  the  act  was  held  to  be 
constitutional,  the  court  stating  that  the  legislature  thereby 
undertook  merely  to  shift  the  burden  of  the  trade  risk  from  the 
employee  to  the  employer,  which  was  said  to  be  within  its 
power.  ^  On  appeal  to  the  court  of  appeals  of  the  state,  how- 
ever, the  law  was  declared  unconstitutional.  The  cogency  of 
the  economic  and  equitable  reasons  was  recognized,  but  it  was 
held  that  under  existing  restrictions  on  legislative  action,  it  was 
impossible  constitutionally  to  enforce  a  law  of  this  nature, 
charging  the  employer  with  liability  for  accidents  resulting  from 
no  fault  of  his  own,  thus  taking  his  property  without  due  pro- 
cess of  law.2 

Laws  following  the  principles  of  the  elective  law  of  New  York 
are  found  in  other  states.^  For  employers  who  do  not  accept 
the  compensation  act,  but  stand  on  the  principle  of  liability,  the 
act  may  provide  that  the  defenses  of  fellow-service  and  assumed 

» Ives  V.  South  Buffalo  R.  Co..  124  N.Y.  Supp.  920. 

«  Ives  V.  South  Buffalo  R.  Co..  201  N.Y.  271.  94  N.E.  431.  It  is  of  interest  to 
note  in  this  connection  that  the  court,  while  recognizing  the  force  of  the  economic 
argument  in  favor  of  the  compensation  law,  yet  concluding  that  it  could  not 
validate  the  act  under  consideration,  was  traversing  the  same  ground  over  which 
the  courts  have  frequently  gone  seeking  reasons  to  justify  the  exception  to  the 
rule  of  respondeat  superior  that  is  presented  in  the  fcUow-scrvant  doctrine, 
though  these  courts  reached  the  conclusion  that  the  economic  argument  was 
adequate.  Sec  sec.  78;  also  opinion  Mass.  Sup.  Ct.,  July  24,  1911,  on  in- 
surance bill. 

»  Cal.,  Act  of  April  8,  1911;  111.,  Act  of  June,  10.  1911  ;  Kans.,  Act  of  March  13, 
1911 ;  N.H.,  Act  of  April  15,  1911 ;  N.J.,  Act  of  AprU  4,  1911 ;  Wis.,  Act  of 
May  3,  1911. 


198  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

risks  shall  be  abrogated,  and  a  rule  of  comparative  negligence 
enacted;  while  in  New  Jersey  the  defense  of  contributory- 
negligence  is  done  away  with  entirely.  Instead  of  making  the 
loss  of  these  defenses  conditional,  they  may  be  restricted  or 
abrogated  absolutely,  by  amendment  of  the  liabiUty  law,  as  in 
California,  New  Hampshire,  and  New  York. 

The  State  of  Nevada  has  a  compulsory  compensation  law,^ 
applicable  to  a  rather  comprehensive  list  of  employments  desig- 
nated as  "  especially  dangerous."  The  employee  has  his  choice 
of  a  claim  under  the  compensation  act  or  a  suit  for  damages, 
the  employer  being  deprived  of  the  defenses  of  fellow-service 
and  assumption  of  risks,  while  that  of  contributory  negligence 
is  restricted.  Contracts  exempting  the  employer  from  his  obli- 
gations under  the  act  are  prohibited,  but  claims  may  be  settled 
by  compromise  after  the  injury  has  been  received. 

'  Act  approved  March  24,  1911. 


CHAPTER  IX 


NEGLIGENCE   OF  EMPLOYEES 


Section  101.  The  Liability  of  Employees  for  their  Negligent 
Acts.  —  An  employee  is  liable  to  his  employer  for  damages 
caused  by  his  negligence  or  misconduct  in  the  performance  of 
his  work,i  a  provision  which  is  embodied  in  the  Field  Codes.^ 
The  burden  of  proving  that  the  damage  was  caused  by  such 
negligence  or  misconduct  is  on  the  employer,^  and  if  the  em- 
ployer's failure  to  furnish  suitable  tools,  materials,  or  appliances 
concurred  with  the  employee's  lack  of  care  or  skill  in  causing  the 
damage,  no  recovery  can  be  had/ 

It  has  been  disputed  whether  an  employee  can  recover  dam- 
ages against  a  fellow-servant  for  negligence  causing  injury,* 
but  the  better  doctrine  is  to  the  effect  that  he  can ;  ^  and  clearly, 
no  sufficient  reason  appears  why  a  man  should  be  relieved  from 
liability  for  his  misconduct  merely  because  its  victim  is  one  who 
is  in  the  same  employment  with  himself,  such  liability  resting 

>  Mobile,  etc.,  R.  Co.  r.  Clanton,  69  Ala.  392,  31  Am.  Rep.  15 ;  Hillyard  c. 
Crabtree,  1 1  Tex.  264,  62  Am.  Dec.  475. 
»  Cal.,  Civ.  Code,  sec.  1990. 

•  Newton  V.  Pope,  1  Cowcn  109  (N.Y.). 
«  Wilder  v.  Stanley,  49  Vt.  105. 

•  Albro  V.  Jaquith,  70  Mass.  99,  64  Am.  Dec.  56;  Stevens  r.  R.  Co.,  1  Ohio 
Dec.  335. 

•  Hinds  B.  Overacker,  66  Ind.  547,  32  Am.  Rep.  114  ;  Hare  o.  Mclntire,  82  Me. 
740,  19  Atl.  453  ;  Osborne  r.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437  (overruling 
the  Albro  case,  aupra) ;  Durkin  v.  Kingston  Coal  Co.,  171  Pa.  193,  33  Atl.  237; 
Brower  v.  N.  P.  R.  Co.,  109  Minn.  385,  124  N.W.  10. 

199 


200  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

on  the  common  law  obligation  to  so  conduct  one's  self  as  not  to 
injure  another,  and  not  on  any  contract  relation. 

A  number  of  states  have  laws  providing  for  penal  proceedings 
against  employees  who  are  negligent  in  the  discharge  of  their 
duties  to  the  injury  of  third  persons.  The  common  law  provides 
for  such  liability  generally,  but  the  statutes  in  question  fix 
stated  penalties  for  certain  classes  of  offenses.^  These  relate 
most  frequently  to  employees  of  common  carriers,  both  by  land 
and  water,  often  with  varying  penalties  for  negligence  and  gross 
negligence,^  or  for  negligence  endangering  life  and  for  that  caus- 
ing actual  loss  of  life.^  Willfully  damaging  live  stock  or  other 
property,  or  unnecessarily  frightening  teams  is  also  made  a 
ground  for  punishment.*  In  some  jurisdictions,  similar  laws 
exist  relating  to  operators  of  steam  boilers  or  other  machinery,^ 
or  even  to  persons  in  charge  of  animals.^ 

The  question  of  requiring  bonds  from  employees  as  a  safe- 
guard against  the  results  of  their  negligence  is  taken  up  by  a  law 
of  Massachusetts,'  by  which  common  carriers  are  forbidden  to 
require  of  their  employees  any  bond  or  other  security  against  the 
consequences  of  the  employee's  negligence  except  a  bond  to  ac- 
count for  money  or  other  property.  A  statute  of  New  Mexico 
looks  only  to  the  prohibition  of  the  requirement  of  bonds  by 
foreign  bonding  companies,  and  forbids  employers  to  charge  a  fee 

>  Ga.,  Pen.  Code,  sec.  115;  Kans.,  G.S..  sees.  2007,  2008;  N.Y.  Con.  L.,  ch. 
40.  sees.  1052,  1891,  1892;  Mass.,  Acts  1906,  ch.  463,  Pt.  II,  sees.  243,  244;  N. 
Dak.,  R.C.,  sees.  8821,  8822,  8993,  8994. 

«  Mass.,  N.Y.,  N.  Dak. 

»  Ala.,  Code,  sees.  7666,  7807,  7808,  7810  ;  Vt.,  P.S.,  sec.  4508. 

«I11.,  R.S.,  ch.  38,  sec.  191. 

•Ariz.,  Pen.  Code,  sec.  308;  Cal.,  Pen.  Code,  sec.  368;  Minn.,  R.L.,  sees. 
4886,  4889  ;  N.Y.,  Con.  L.,  ch.  40,  sec.  1893. 

•  Minn.,  R.L.,  sec.  4886.  »  Acts  1909,  ch.  614,  sec.  24. 


NEGLIGENCE   OF  EMPLOYEES  201 

for  bonds  against  loss  from  the  acts  of  an  employee  against  such 
employee's  wages  unless  the  company  writing  the  guarantee 
maintains  an  office  in  the  territory.^ 

A  specific  form  of  negligence  adverted  to  by  the  laws  of  a 
majority  of  the  United  States  is  the  intoxication  of  employees.^ 
These  laws  relate  in  most  instances  to  the  employees  of  common 
carriers,  and  have  regard  to  the  welfare  and  safety  of  the  public 
as  well  as  of  fellow-servants.  A  law  prohibiting  intoxicated 
persons  to  enter  or  be  in  any  mine,  smelter,  machine  shop,  or 
sawmilP  doubtless  has  regard  less  directly  for  the  interests  of  the 
public.  In  a  number  of  states  an  employer  who  is  a  common 
carrier  is  subject  to  a  fine  if  he  hires  or  retains  in  his  service  per- 
sons of  intemperate  habits.*  The  statute  may  also  declare  him 
liable  in  damages  by  reason  of  any  injury  caused  by  such  em- 
ployment,^ which  is,  however  but  a  statement  of  the  common 
law  controlling  in  such  cases.  The  employee  may  also  be  de- 
clared liable  for  all  damages  incurred  or  produced  by  reason  of 
his  intoxication  during  employment;^  or,  if  he  causes  injury 
to  person  or  property  by  reason  of  such  intoxication,  he  may  be 
fined  or  imprisoned.^ 

Section  102.  Liability  of  the  Employer  to  Third  Persons.  — 
The  doctrine  of  respondeat  superior,  i.e.,  that  one  is  responsible 
for  the  acts  of  his  agents,  operates  to  give  third  persons  a  right 
of  action  against  the  employer  as  principal,  as  well  as  against 

'  C.L.,  sees.  2141,  2142. 

*  Ariz..  Pen.  Code.  sec.  356;  Conn.,  Acta  1907,  ch.  267;  Ind.,  Acta  1907,  ch. 
272,  sec.  3  ;   Miss.,  Code,  sec.  1350. 

»  Wyo..  Acts  1909,  ch.  32. 

<Cal.,  Polit.  Code.  sees.  2932,2933;  Mich.,  C.L.,  sec.  6284;  Ohio,  Gen. 
Code,  sec.  9005. 

«  Vt..  P.S.,  sec.  4506.  «  Mich.,  C.L.,  sec.  6285. 

'  Vt.,  P.S.,  sec.  4507  ;  Conn.,  Acta  1907,  ch.  267  ;  Ind.,  Acta  1907,  ch.  272. 


202  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

the  negligent  actor,  where  an  injury  is  received  on  account  of 
the  negligence  of  an  employee.^  To  give  ground  for  the  action 
against  the  employer  the  relation  of  employer  and  employee 
must  exist  at  the  time  of  the  act  giving  rise  to  the  claim,  though 
the  acts  of  one  rendering  service,  however  trivial,  or  for  however 
short  a  time,  and  even  if  without  being  requested  so  to  do  by 
the  person  served,  if  done  with  his  knowledge,  or  with  his  as- 
sent, express  or  implied,  will  make  him  liable  in  damages  to 
third  persons  injured  by  such  acts.^  The  degree  of  liability  is,  of 
course,  only  such  as  the  employer  would  have  incurred  if  he  had 
done  the  act  himself ;  and  since  the  doctrine  is  an  exception  to 
the  broader  rule  that  every  one  is  answerable  for  his  own  acts, 
its  limits  are  in  fact  carefully  guarded,  being  in  general  restricted 
to  specifically  authorized  acts,'  or  those  done  in  line  of  duty  and 
for  the  benefit  of  the  employer,  since  beyond  the  scope  of  his 
employment  the  employee  has  no  more  claim  upon  his  employer 
than  has  any  other  person,^  but  within  this  scope  the  employer 
is  liable  even  though  the  act  is  willful  and  wanton.^ 

The  liability  is  the  consequence  of  the  negligent  character  of 
the  act  causing  it,  and  it  is  no  defense  to  the  employer  that  he 
was  careful  in  choosing  his  employees,  or  had  no  notice  of  their 
incompetency.®  If  the  act  was  done  in  the  course  of  employ- 
ment and  in  the  furtherance  of  the  employer's  business,  it  is  no 

>  Farwell  v.  Boston  W.  R.  Co.,  4  Mete.  49  (Mass.) ;  Warax  v.  Cincinnati,  etc., 
R.  Co.,  72  Fed.  637 ;  Chesapeake  &  O.  R.  Co.  v.  Dixon,  179  U.S.  131,  21  Sup.  Ct. 
67.  »  HUl  V.  Morey,  26  Vt.  178 ;  Althorf  v.  Wolfe,  22  N.Y.  355. 

»  Lynch  v.  Metropolitan  E.  R.  Co.,  90  N.Y.  77,  43  Am.  Rep.  141. 

*  Marier  v.  R.  Co.,  31  Minn.  351,  17  N.W.  952  ;  Phelan  v.  Stiles,  43  Conn.  426 ; 
Medlin  Milling  Co.  v.  Boutwell  (Tex.),  133  S.W.  1042. 

'  Jones  V.  Seaboard  Air  Line  R.  Co.,  150  N.C.  473,  64  S.E.  205 ;  Wallace  v. 
John  A.  Casey  Co.,  116  N.Y.S.  394. 

•  Minot  V.  Snavely,  172  Fed.  212  (C.C.A.). 


NEGLIGENCE   OP  EMPLOYEES  203 

defense  that  the  act  itself  was  specifically  prohibited.^  Thus 
where  a  salesman  loaded  a  gun  in  a  store  at  the  request  of  a 
customer,  though  protesting  that  it  was  against  his  employer's 
instructions,  a  resultant  injury  to  a  bystander  was  held  to  be 
chargeable  to  the  employer  because  of  the  purpose  of  the  act, 
which  was  in  no  sense  to  serve  the  negligent  employee,  but  only 
to  effect  a  sale  for  his  employer.^  The  same  rule  has  been  en- 
forced where  the  injurious  act  was  obviously  unauthorized,  as 
the  forcible  taking  of  an  article  of  property  to  secure  the  pay- 
ment of  fare,^  or  the  use  of  undue  violence  in  carrying  out  an 
order,*  such  acts  having  been  committed  in  the  exercise  of  the 
general  power  intrusted  to  the  employee  by  the  employer. 

An  employer  may  ratify  a  wrongful  act  of  his  em- 
ployee, as  by  accepting  benefits  procured  by  the  acts  of  which 
the  wrong  was  an  incident,  and  thus  become  liable  therefor  to 
the  injured  person.*  The  mere  fact  of  the  retention  of  an  em- 
ployee after  the  commission  of  the  wrongful  act  does  not  amount 
to  a  ratification  thereof,®  though  it  is  said  that  to  retain  and 
promote  an  employee  with  a  knowledge  of  his  tortious  acts  is 
some  evidence  of  such  ratification.'^  It  has  been  held  that, 
where  the  injury  is  caused  by  acts  in  the  nature  of  slander  or 
libel,  it  is  not  sufficient  to  show  that  the  servant  was  at  the  time 

«  Western  Real  Estate  Trustees  v.  Hughes,  172  Fed.  206  (CCA.) ;  Philadel- 
phia &  R.  R.  Co.  V.  Derby,  14  How.  (55  U.S.)  468. 

*  Garretzen  v.  Ducnckel,  50  Mo.  104,  11  Am.  Rep.  405. 
»  Ramsden  v.  R.  Co.,  104  Mass.  117,  6  Am.  Rep.  120. 

*  Jeffersonville  R.  Co.  v.  Rogers,  38  Ind.  116,  10  Am.  Rep.  103;  Steamboat 
Co.  V.  Brockett,  121  U.S.  637,  7  Sup.  Ct.  1039;  Tillar».  Reynolds  (Ark.),  131 
8.W.  969. 

'  Simon  v.  Bloomingdale,  81  N.Y.  Supp.  499,  39  Misc.  847 ;  Dempsey  v. 
Chambers,  154  Mass.  3.30,  28  N.E.  279. 

*  International,  etc.,  R.  Co.  v.  McDonald,  75  Texas  41,  12  S.W.  860. 
'  Bass  V.  Chicago,  etc.,  R.  Co.,  42  Wis.  654.  24  Am.  Rop.  437. 


204  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

in  the  service  of  his  employer  or  acting  within  the  scope  of  his 
employment;  but  direct  authority  to  speak  the  actionable 
words,  or  their  subsequent  approval  and  ratification  must  also 
be  shown.^ 

Both  master  and  servant  may  be  held  responsible  for  injuries, 
either  to  strangers  "^  or  to  other  employees ; '  and  a  nonresident 
corporation  cannot  procure  a  separation  of  a  joint  action  so  as 
to  avail  itself  of  the  right  of  removal  of  the  case  from  a  state  to  a 
federal  court.^  The  law  of  one  state  directs  that  in  actions  for 
damages  against  an  employer,  when  the  injury  is  the  result  of 
the  negligence  of  a  co-employee  of  the  person  injured,  such 
negligent  employee  shall  be  named  in  the  verdict.^  If  the  li- 
ability of  the  employer  is  based  solely  on  the  rule  of  respondeat 
superior,  and  not  any  participation  by  him  in  the  negligent  or 
wrongful  act,  it  has  been  held  that  the  employer's  Uability  in 
such  a  case  is  separate  and  distinct  from  that  of  the  employee, 
and  not  joint,  and  that  therefore  a  nonresident  employer's  case 
might  be  transferred  to  a  federal  court ;  ®  but  the  contrary 
rule  is  fixed  as  the  practice  of  the  Supreme  Court  J  Where  an 
employer  has  been  subjected  to  the  payment  of  damages  on 
account  of  the  wrongful  act  of  his  employee,  in  a  case  in  which  he 
is  not  jointly  liable,  he  may  recover  the  sum  paid  in  an  action 
against  the  employee,*  though  it  must  appear  clearly  that  the 
latter  was  guilty  of  negligence,  to  support  such  a  recovery.^ 

1  Duquesne  Distributing  Co.  v.  Greenbaum,  135  Ky.  182,  121  S.W.  1026. 

»  Hewett  V.  Swift,  85  Mass.  420.  '  Fort  v.  Whipple,  11  Hun.  586. 

*  Chesapeake  &  O.  R.  Co.  v.  Dixon,  179  U.S.  131,  21  Sup.  Ct.  67;  Alabama 
G.  S.  R.  Co.  V.  Thompson,  200  U.S.  206,  26  Sup.  Ct.  161. 

»  Minn.,  R.L.,  sec.  4179.  «  Warax  v.  Cincinnati,  etc.,  R.  Co.,  72  Fed.  637. 

'Chesapeake  &  O.  R.  Co.  v.  Dixon,  supra;  Alabama  G.  S.  R.  Co.  v.  Thomp- 
son, supra.  s  Smith  v.  Foran,  43  Conn.  244,  21  Am.  Rep.  647. 

»  Brannan  v.  Hoel,  15  La.  Ann.  308. 


CHAPTER  X 

SUNDRY   STATUTES 

Section  103.  Ldability  of  Employers  for  Taxes  of  Employees. 
—  An  incident  of  the  relation  of  employer  and  employee  that  is 
purely  statutory  is  a  provision  of  the  laws  of  a  few  states  that 
makes  employers  liable  for  taxes  levied  on  their  employees,^ 
usually  poll  and  road  taxes.  By  these  statutes  the  employer 
may  be  required  to  pay  such  taxes  and  recoup  himself  from  the 
wages  owing  to  or  earned  by  them.  The  Pennsylvania  statute  ^ 
refers  to  alien  employees  only,  but  covers  all  taxes  payable  by 
them.  Falling  short  of  such  requirements,  but  looking  toward 
the  same  end  are  laws  directing  employers  to  furnish  the  names 
of  employees  to  assessors,  road  overseers,  etc.^  Such  laws  go 
to  quite  an  extreme  in  the  matter  of  charging  employers  with  the 
duties  devolving  on  the  public  officers  of  the  state,  and  arc  of  at 
least  doubtful  validity,  burdening  employers  with  the  discharge 
of  a  quasi  public  function  from  which  other  persons  in  like  situa- 
tion in  every  respect  except  that  they  are  not  employers  are 
free ;  *   nor  does  the  duty  fall  equally  on  employers,  especially 

»  Cal.,  Polit.Codc,  ace.  2671 ;  Ga.,  Polit.  Code,  sec.  549 ;  Idaho.  R.C..  sec. 
908;  La.,  Acts  1902,  No.  213;  N.  Mex.,  Acta  1907,  ch.  96;  Wash.,  Acta  1903, 
ch.  119  ;   Wyo..  Acts  1905,  ch.  52. 

»  Acts  1897,  No.  108. 

*  Ark.  Dig.,  sec.  5355  ;  Cal.  Pen.  Code,  sec.  434  ;  Colo.,  A.C.,  sec.  3957  ;  N.C. 
Rev.,  sec.  5201. 

*  County  Com'ra  v.  Aspen  Mining  Co.,  3  Colo.  App.  223,  32  Pac.  717. 

205 


206  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

in  the  case  of  the  Pennsylvania  statute,  and  it  seems  probable 
that  the  law  of  that  state  would  fall  under  the  same  condemna- 
tion as  did  the  statute  taxing  employers  of  alien  labor.  (See 
sec.  56.) 

In  case  of  a  judgment  for  taxes  rendered  against  a  delinquent 
workman,  the  obligation  devolving  on  the  employer  is  in  the 
nature  of  a  garnishment,  and  he  is  liable  for  the  payment  of 
such  taxes  if  and  only  if  he  is  indebted  to  the  employee  at  the 
time  the  notice  is  served,  or  becomes  indebted  thereafter.^ 

Section  104.  Profit  Sharing  by  Employees.  —  Two  states 
have  laws  containing  special  provisions  authorizing  corpora- 
tions to  arrange  for  admitting  employees  to  an  interest  in  the 
profits  of  the  business.  In  one  of  these  ^  the  method  is  simply 
a  grant  of  power  to  the  board  of  directors  to  distribute  to  the 
employees  such  portion  of  the  profits  as  it  may  deem  just  and 
proper ;  in  the  other  instance,'  provision  is  made  for  the  issue 
of  special  stock  to  employees,  such  stock  to  be  held  only  by 
them.  The  value  of  such  stock  is  limited,  and  the  proportion 
to  the  total  value  of  the  capital  restricted;  the  payment  of 
dividends  thereon  is  also  regulated.  These  laws  are  of  but  little 
interest,  since  they  are  not  essential  to  the  practices  indicated, 
which  are  much  more  common  than  is  the  legislation. 

Section  105.  Pensions  for  Employees.  —  The  law  of  Pennsyl- 
vania regulating  corporations  contains  a  section  *  which  declares 
that  corporations  for  profit  may  grant  allowances  or  pensions 
to  employees  who  have  become  old  or  infirm  during  service. 
Like  the  laws  mentioned  in  the  foregoing  section,  this  law  is  of 

1  Kootenai  County  v.  Hope  Lumber  Co.,  13  Idaho  262,  89  Pac.  1054. 

*  Conn.,  G.S.,  sec.  3342. 

» Mass.,  R.L.,  ch.  110,  sees.  37-39.  «  B.  P.  Dig.,  p.  424,  sec.  106. 


SUNDRY  STATUTES  207 

no  particular  value,  the  practice  being  comparatively  wide- 
spread and  entirely  independent  of  statutory  regulations. 

Section  106.  Cooperative  Associations.  —  A  number  of  states 
have  special  laws  providing  for  the  formation  of  cooperative 
associations  for  profit.^  So  far  as  productive  associations  are 
concerned,  it  is  the  intention  of  these  laws  to  provide  for  the 
cooperation  in  industrial  undertakings  of  groups  of  persons  as- 
sociated in  corporate  form  to  manage  a  business  in  which  the 
labor  shall  be  furnished  largely  or  exclusively  by  the  members 
themselves.  Provision  is  made  against  the  concentration  of 
stock  or  of  power,  either  by  declaring  that  members  shall  hold 
but  one  share  each  of  the  stock,  or  by  limiting  the  value  of  the 
stock  one  member  may  hold ;  voting  power  is  also  restricted. 

Section  107.  Workmen's  Trains.  — One  state  has  a  statute  re- 
quiring every  railroad  having  a  terminus  in  its  principal  city  to 
operate  not  less  than  two  workingmen's  trains  each  way  daily.^ 
The  hours  of  arrival  and  departure  and  the  rates  of  fare  are 
fixed  by  the  statute.  The  number  of  trains  may  be  increased 
by  the  board  of  railroad  commissioners  on  petition. 

The  object  of  securing  reduced  rates  of  transportation  for 
workmen  at  certain  hours  of  the  day  may  also  be  gained  by 
provisions  in  the  articles  of  incorporation  of  street  railways,  or 
by  city  ordinances;  and  where  the  ordinance  requires  such 
service  within  the  city  limits,  the  extension  of  the  bounds  of  the 
city  will  operate  to  extend  the  application  of  the  ordinance, 
where  the  same  charter  is  effective.' 

>  Conn.,  G.S..  sees.  3992-4001;  lU.,  R.S.,  ch.  32,  sees.  103-127;  Kans., 
G.S.,  sees.  1454-1456;  Mass.,  R.L.,  ch.  110,  sees.  7,  69,  70;  N.J.,  G.S.,  pp.  894- 
896. 

«  Mass.,  Acts  1906,  ch.  463,  Pt.  II,  see.  188. 

»  People  V.  Detroit  United  Railway,  162  Mich.  460,  126  N.W.  700. 


208  LAW  OP  THE   EMPLOYMENT  OF  LABOR 

Section  108.  Employment  Offices.  —  Agencies  having  for 
their  object  the  placing  of  applicants  for  employment  or  the 
furnishing  of  employees  to  persons  seeking  workmen  are  regu- 
lated by  statute  in  many  states,  the  large  amount  of  fraud  and 
of  abuse  of  confidence  being  held  to  justify  such  action.  The 
state  itself  has  undertaken  to  render  this  service  in  a  number  of 
jurisdictions,  appropriating  sums  of  money  for  the  maintenance 
of  bureaus  of  information  and  registration  for  both  workmen 
and  employers.^  These  offices  are  usually  under  the  direction 
and  management  of  the  state  labor  commissioner,  and  are 
recognized  as  a  proper  form  of  state  activity.  The  service  is 
without  charge  to  either  party,  and  must  be  uniformly  rendered 
without  discrimination  between  persons  engaged  in  or  seeking 
legitimate  employment.  Thus  a  law  forbidding  the  furnishing 
of  lists  of  applicants  for  employment  to  employers  whose  work- 
men are  on  strike  ^  was  declared  unconstitutional  as  unlawfully 
discriminating  between  employers  having  employees  who  had 
gone  on  strike,  possibly  without  justifiable  cause,  and  other 
employers ;  also  between  workmen  applying  for  situations  with 
employers  whose  men  are  not  on  strike  and  workmen  whose 
applications  were  not  so  restricted.^  In  other  words,  it  was  an 
attempt  to  enact  a  law  not  affording  the  equal  protection  to  the 
citizens  of  the  state  that  is  required  by  the  fourteenth  amend- 
ment. 

The  regulations  affecting  privately  managed  employment 
agencies  may  require  merely  a  registry  of  the  agency  and  the 


1  Conn.,  G.S.,  sees.  4608,  4609,  Aets  1903,  ch.  33 ;  111.,  R.S.,  oh.  48,  sees.  53 
to  60  ;  Mich.,  Acts  1907,  No.  281 ;  Ohio,  Acts  1904,  p.  101,  etc. 
« III.,  Acts  1899,  p.  268. 
»  Matthews  v.  People,  202  111.  389,  67  N.E.  28. 


SUNDRY  STATUTES  209 

payment  of  a  tax  or  license  fee ;  *  or  they  may  contain  the  added 
requirement  of  good  character  of  the  applicant  for  hcense ;  ^  or 
of  a  bond  conditioned  that  the  applicant  shall  conduct  his  agency 
properly  and  pay  damages  resulting  from  misconduct.^  They 
may,  on  the  other  hand,  prescribe  minutely  the  conduct  of  the 
business,^  as  by  fixing  or  limiting  the  amount  of  the  fee  to  be 
charged,  or  prohibiting  the  making  of  any  charge  in  advance  of 
the  furnishing  of  information  or  assistance  to  the  applicant,  or 
forbidding  the  division  of  the  fees  with  employer.  Failure  to 
secure  or  retain  a  position  by  the  assistance  of  the  agency  may 
be  made  grounds  for  a  demand  for  a  return  of  a  part  or  all  of 
the  fee  paid.  The  sending  of  applicants  for  labor  to  places  of 
an  immoral  character  is  frequently  prohibited  in  laws  of  this 
class,  and  the  location  of  the  office  of  the  agent  in  or  in  com- 
munication with  any  place  in  which  intoxicants  are  sold,  or  in 
connection  with  any  restaurant  or  lodging  house  may  be  for- 
bidden. The  agent  may  be  required  to  assure  himself  beyond 
a  reasonable  doubt  as  to  the  correctness  of  his  statements,  and 
the  making  of  false  statements  be  punished  as  a  misdemeanor. 
Laws  of  this  nature  are  clearly  restrictive  of  the  citizen's 
right  to  carry  on  a  lawful  business,  and  as  such  their  constitu- 
tionality has  been  challenged.  They  have  been  upheld  by  the 
courts,  however,  on  the  ground  that  they  are  within  the  police 
power  of  the  state,  exercised  in  behalf  of  the  general  welfare, 
and  specifically  to  prevent  fraud  and  immorality.     "The  leg- 

>  Tenn.,  Acta  1907,  ch.  541,  sec.  4  ;   Ky.,  Acts  1904,  ch.  33  ;   Nev.,  C.L.,  sec. 
1187.  '  Va.,  Code  App.,  sees.  128,  129. 

'  La.,  Acta  1894.  No.  58 ;  Idaho,  Code,  seca.  658,  659. 

*  D.C.  (U.S.),  34  Stat.  304,  848,  35  Stat.  641 ;  Cal.,  Sims'  Penal  Code,  p.  582 ; 
III.,  R.S.,  ch.  48,  aeca.  61,  62;   N.Y..  Con.  L.,  ch.  20.  aeca.  170-189;    Pa.,  Acta 
1907.  No.  90 ;  N.  J.  Acts  1907.  ch.  230 ;  Ohio.  Gen.  Code.  sees.  886-896. 
P 


210  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

islature  has  the  right  to  take  notice  of  the  fact  that  such  agencies 
are  places  where  emigrants  and  ignorant  people  frequently 
resort  to  obtain  employment  and  to  procure  information,"  ^ 
and  the  evils  of  imposition  and  extortion  that  are  known  to  have 
been  practiced  by  private  agencies  warrant  their  regulation  by 
statute.^  A  provision  limiting  the  amount  of  charges  was  held 
unconstitutional  in  a  California  case,^  the  language  used  by  the 
court  being  such  as  to  suggest  its  disapproval  of  the  entire  law. 
The  better  opinion  is,  however,  clearly  in  their  favor. 

A  few  states  require  emigrant  agents,  i.e.,  agents  undertaking 
to  procure  employees  for  labor  outside  the  state  of  residence,  to 
pay  a  tax  for  the  privilege  of  transacting  such  business,  not  so 
much,  apparently,  by  way  of  regulation  as  for  the  sake  of  dis- 
couraging it  entirely.  Such  at  least  would  seem  to  be  a  natural 
inference  from  a  tax  rate  of  five  hundred  dollars  for  each  county 
in  which  the  business  is  carried  on,'*  or  even  of  one  hundred 
dollars ;  ^  while  a  rate  of  one  thousand  dollars  per  county  ® 
could  hardly  receive  any  other  interpretation.  No  license  is 
necessary  where  the  hiring  is  done  by  the  employer  himself  or 
by  his  agent  solely  for  him.''  The  validity  of  this  class  of 
laws,  as  taxing  laws,  was  upheld  in  a  case  arising  under  the 
tax  law  of  Georgia  of  1898,  which  fixed  the  rate  at  five  hundred 
dollars  for  each  county  in  which  the  agent  wished  to  operate. 
The  contentions  that  the  act  restricted  the  right  of  a  citizen  to 

1  People  ex  rel  Armstrong  v.  Warden,  183  N.Y.  223,  76  N.E.  11. 
'  Price  V.  People,  193  111.  114,  61  N.E.  844;  State  v.  Napier,  63  S.C.  60,  41 
S.E.  13. 

5  Ex  parte  Dickey,  144  Cal.  234,  77  Pac.  924. 

«  Fla.,  G.S.,  sec.  476  ;  Ga.,  Acts  1907,  p.  25. 

'  N.C.,  Revisal,  sec.  5108.  «  S.C,  Acts  1907,  ch.  259. 

»  Watts  V.  Commonwealth,  106  Va.  851,  56  S.E.  223. 


SUNDRY  STATUTES  211 

move  from  one  state  to  another,  impaired  the  natural  right 
to  labor,  and  was  class  legislation  without  a  reasonable  basis, 
were  all  disallowed  by  the  Supreme  Court ;  *  nor  would  this 
court  impute  prohibitive  intent  to  the  law.  The  courts  of 
states  having  laws  of  this  class  follow  this  decision,^  which 
itself  was  in  affirmation  of  a  case  decided  by  the  supreme  court 
of  Georgia.^ 

In  this  connection  may  be  mentioned  statutes  of  a  few  states 
forbidding  superintendents,  foremen,  and  others  who  employ 
and  discharge  workmen,  to  ask  for  or  receive  fees  or  gratuities 
for  giving  employment  or  continuing  employees  in  service* 

Section  109.  Bureaus  of  Labor.  —  Offices  exist  in  most  of  the 
United  States  as  a  part  of  the  administrative  force  of  the  state, 
whose  duty  it  is  to  collect  industrial  statistics,  investigate 
conditions  of  employment,  inspect  factories  and  other  work 
places,  administer  and  enforce  the  laws  enacted  for  the  protec- 
tion of  labor,  and  seek  to  improve  the  condition  of  manual 
laborers  in  general.  The  heads  of  such  bureaus  or  offices  are 
usually  known  as  commissioners,  and  are  sometimes  appointed 
by  the  governor  and  sometimes  elected  by  popular  vote.  The 
work  of  factory  inspection,  mine  inspection,  the  enforcement  of 
child  and  woman  labor  laws,  the  mediation  and  conciliation  of 
labor  disputes,  and  the  conduct  of  free  public  employment  offices 
are  some  of  the  administrative  duties  with  which  the  com- 
missioners of  labor  may  be  charged  in  the  various  states.     In  the 

>  WUliams  v.  Fears,  179  U.S.  270,  21  Sup.  Ct.  128. 

*  State  V.  Napier,  supra;  State  v.  Roberson,  136  N.C.  587.  48  S.E.  595. 
»  Williams  v.  Fears.  110  Ga.  584,  35  S.E.  699. 

*  Conn..  G.S..  sec.  4698 ;  Fla..  G.S..  sec.  3743  (employment  of  longshoremen) ; 
Mont.,  Acts  1907,  ch.  52  ;  Nev..  Acts  1909,  ch.  25 ;  Pa.,  B.  Dig.,  p.  457,  sec.  85  ; 
Utah,  Acts  1909,  ch.  52. 


212  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

carrying  out  of  this  work  they  may  be  required  to  prosecute 
employers  and  proprietors  who  disregard  the  statutes  or  the 
orders  of  the  commissioners  and  their  inspecting  force;  they 
may  also  be  required  to  defend  in  actions  brought  by  persons 
who  feel  themselves  aggrieved  by  such  statutes  or  orders.  It  is 
only  in  this  indirect  connection  therefore  that  bureaus  of  labor 
call  for  mention  here,  the  laws  which  they  enforce  having  been 
already  noted  under  their  respective  heads. 

The  National  Bureau  of  Labor  is  charged  with  the  adminis- 
tration of  no  laws,  its  functions  being  investigatory  only;  the 
single  exception  to  this  rule  lies  in  the  fact  that  the  administra- 
tion of  the  federal  compensation  act  (see  sec.  99)  is  delegated 
in  large  part  to  this  bureau  by  the  head  of  the  Department  of 
Commerce  and  Labor,  to  whom  the  statute  is  by  its  terms  com- 
mitted for  enforcement.  The  Commissioner  of  Labor  also  acts 
with  a  member  of  the  Interstate  Commerce  Commission  or  of 
the  Court  of  Commerce  designated  by  the  President,  in  efforts  to 
mediate  in  labor  disputes  affecting  interstate  common  carriers. 
(See  sec.  128.) 


CHAPTER  XI 

TRADE   AND    LABOR   ASSOCIATIONS 

Section  1 10.  Nature. — Associations  of  workingmen,  whether 
members  of  single  trades  or  of  wider  industrial  groups,  are 
the  result  of  a  purpose  to  procure  for  their  members  benefits 
that  are  conceived  to  be  better  obtainable  by  concerted  action 
than  by  individuals  acting  singly.  Such  associations  operate 
by  way  of  agreement,  each  member  giving  over  in  part  his  own 
freedom  of  action  to  the  vAW  and  choice  of  the  organization  in 
exchange  for  the  benefits  and  protection  proposed  to  be  derived 
from  his  membership  therein.  To  the  extent  of  the  scope  of  such 
agreements  they  operate  as  a  restraint  on  the  free  action  of  the 
individual  in  disposing  of  his  own  labor,  and  in  a  resultant  de- 
gree, on  the  free  course  of  employment. 

Efforts  to  better  the  conditions  of  employment,  including  the 
subjects  of  wages,  hours  of  labor,  shop  rules,  and  the  persormel 
of  the  working  force,  are  uniformly  held  to  be  la^vful  by  the 
courts  of  this  country,  and  the  fact  of  combination  in  nowise 
affects  the  fact  of  la^vfulness,  although  the  power  of  the  asso- 
ciated members  is  far  greater  than  the  mere  sum  of  the  indivi- 
dual forces  comprising  the  association,  and  though  there  is  a 
measure  of  restraint  on  trade.*  With  the  exception  of  a  very 
few  early  and  entirely  repudiated  cases,  this  has  always  been  the 

»  Master  Stevedores'  Ass'n.  v.  Walsh,  2  Daly  1  (N.Y.) ;  Carew  r.  Ruther- 
ford. 106  Mass.  1,  8  Am.  Rep.  287;  Union  P.  R.  Co.  v.  Ruef,  120  Fed.  102 :  Na- 
tional Protective  Ass'n.  v.  Cumraings,  170  N.Y.  315.63  N.E.  369;  Arthur  v. 
Oakes.  63  Fed.  320,  11  CCA.  209  ;  Hopkins  v.  U.S.,  171  U.S.  578,  19  Sup.  Ct.  40. 

213 


214  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

rule  in  the  United  States,  while  in  many  states,  and  by  federal 
enactment,  the  lawfulness  of  labor  associations  is  declared  by 
statute ;  ^  special  provisions  may  also  be  made  for  their  incor- 
poration.2 

This  broad  statement  as  to  the  legality  of  associations  and 
agreements  must  be  qualified  as  soon  as  the  conduct  of  third 
persons  is  made  the  subject  of  regulation  or  attempted  regu- 
lation,^ since  one  man's  rights  end  where  another's  begin,  though 
at  what  point  this  line  is  to  be  drawn  has  been  the  subject  of 
numerous  divergent  opinions ;  ■*  nor  can  a  man  lawfully  bind 
himself  irrevocably  to  a  surrender  of  his  own  choice  and  will. 
In  other  words,  the  voluntary  character  of  the  association  must 
be  maintained,  and  excessive  fines  or  forfeitures  to  compel  the 
observance  of  membership  agreements  cannot  be  enforced  at 
law,  even  against  the  party  making  them.^    The  preservation  of 

iCal.,  Acta  1903.  ch.  289;  Colo.,  A.S.,  sec.  1295;  N.Y.,  Con.  L.,  ch.  40. 
BCC.  582  ;  Pa.,  B.  P.  Dig.,  p.  484,  sees.  72,  73. 

« Iowa,  Code,  sees.  1642,  1643  ;  La.,  R.L.,  sec.  677.  Acts  1890,  No.  50 ;  Mass., 
R.L.,  ch.  125,  sees.  13-16  ;  U.S.,  30  Stat.  424,  Comp.  St.,  p.  3204. 

«  U.S.  V.  Debs,  63  Fed.  436,  64  Fed.  724,  65  Fed.  210  ;  In  re  Debs,  158  U.S.  564, 
15  Sup.  Ct.  900 ;  Loewe  v.  Lawlor,  208  U.S.  274,  28  Sup.  Ct.  301 ;  Pickett  v. 
Walsh,  192  Mass.  572,  78  N.E.  753. 

*  The  general  principle  seems  to  be  well  expressed  in  a  case  (Curran  v.  Galen, 
152  N.Y.  33,  46  N.E.  297),  in  which  a  nonunion  employee  was  suing  to  recover 
damages  for  his  discharge  made  in  pursuance  of  an  agreement  that  only  union 
men  should  be  employed.  In  this  case  the  court  said  :  "  Public  policy  and  the 
interests  of  society  favor  the  utmost  freedom  in  the  citizen  to  pursue  his  lawful 
trade  or  calling,  and  if  the  purpose  of  an  organization  or  combination  of  working- 
men  be  to  hamper  or  restrict  that  freedom,  and,  through  contracts  or  arrange- 
ments with  employers,  to  coerce  other  workingmen  to  become  members  of  the 
organization  and  to  come  under  its  rules  and  conditions,  under  the  penalty  of 
the  loss  of  their  positions  and  of  deprivation  of  employment,  then  that  purpose 
seems  clearly  unlawful,  and  militates  against  the  spirit  of  our  government  and 
the  nature  of  our  institutions." 

»  Martell  v.  White,  185  Mass.  255,  69  N.E.  1085 ;  Boutwell  v.  Marr,  71  Vt.  1, 
42  Atl.  607;  Willcut  &  Sons  Co.  v.  Bricklayers'  Ben.  P.U.,  200  Mass.  110,  85 
N.E.  897 ;  Gatzow  v.  Buening,  106  Wis.  1,  81  N.W.  1003. 


TRADE  AND  LABOR  ASSOCIATIONS  215 

a  reasonable  degree  of  liberty  of  action  on  the  part  of  the  mem- 
bers of  organizations,  other  workmen,  employers,  and  the  public 
generally  would  appear  to  be  the  fundamental  obligation  which 
combinations  of  the  sort  under  consideration  should  be  required 
to  meet.^     The  fact  is  not  overlooked  in  this  connection  that 

'  In  the  case  of  Martell  v.  White,  cited  above,  a  voluntary  association  of  gran- 
ite manufacturers  had  agreed  to  limit  their  business  transactions  to  members  of 
the  association,  under  a  penalty  not  to  exceed  five  hundred  dollars.  Martell, 
a  quarrjinan,  who  was  not  a  member  of  the  association,  complained  of  loss  of 
trade  by  reason  of  the  agreement.  Members  of  the  association  had  in  fact 
dealt  with  him  until  the  enforcement  of  penalties  caused  them  to  cease.  The  trial 
court  ruled  that  Martell  had  no  ground  of  action,  but  on  appeal  it  was  held  that 
though  the  end  sought,  i.e.,  the  advancement  of  the  business  interests  of  the 
members,  was  not  illegal,  the  fact  that  there  was  arbitrary  and  artificial  inter- 
ference with  the  choice  and  acts  of  the  members  of  the  association,  afforded  suffi- 
cient grounds  to  support  an  action.  The  coercive  system  of  fines,  enforced  by  a 
tribunal  not  legally  constituted,  even  though  assented  to  in  the  original  agree- 
ment, was  held  to  result  in  illegal  restraint,  used  as  it  was  to  enforce  a  right,  not 
absolute,  but  conditional,  and  inconsistent  with  the  conditions  upon  which  the 
right  rests.  The  case  of  Boutwell  v.  Marr  was  cited  in  this  case,  the  circum- 
stances having  been  quite  similar.  In  the  Boutwell  case  the  court  said  :  "The 
law  cannot  be  compelled,  by  any  initial  agreement  of  an  associate  member,  to 
treat  him  as  one  having  no  choice  but  that  of  the  majority,  nor  as  a  willing  par- 
ticipant in  whatever  action  may  be  taken.  The  voluntary  acceptance  of  by- 
laws providing  for  the  imposition  of  coercive  fines  does  not  make  them  legal  and 
collectible,  and  the  standing  threat  of  their  imposition  may  properly  be  classed 
with  the  ordinary  threat  of  suits  upon  groundless  claims." 

While  the  above  cases  are  not  those  of  combinations  of  workingmcn,  the  prin- 
ciples of  the  Martell  case  were  directly  applied  to  a  labor  organization  seeking 
to  enforce  a  strike  order  by  fines  on  members  unwilling  to  leave  their  employ- 
ment (Willcutt  <fe  Sons  Co.  v.  Bricklayers,  etc.,  supra)  ;  to  a  case  in  which  a  labor 
union  sought  to  enforce  a  fine  against  an  employer  of  some  of  its  members  for  not 
giving  ail  his  work  to  union  workmen  (Carew  v.  Rutherford,  106  Mass.  1,  8  Am. 
Rep.  287 :  the  fine  was  paid,  but  the  court  allowed  Carew  to  recover  it,  as  no 
one  has  the  right,  "either  alone  or  in  combination  with  others  to  disturb  or 
annoy  another  either  directly  or  indirectly,  in  his  lawful  business  or  occupation, 
or  to  threaten  him  with  annoyance  or  injury,  for  the  sake  of  compelling  him  to 
buy  his  peace."  See  also  March  v.  Bricklayers'  and  Plasterers'  Union,  79  Conn. 
7,  63  Atl.  291) ;  and  to  a  case  in  which  a  member  was  ordered  to  pay  a  fine  for 


216  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

there  is  "an  undoubted,  and,  from  the  practical  standpoint, 
probably  unassailable  determination  of  the  state  to  diminish 
the  natural  inequality  of  capital  and  labor,  by  prohibiting  com- 
binations of  capital  and  permitting  combinations  of  labor."  ^ 
But  legislative  expression  of  this  intent  does  not  authorize  in- 
terference with  the  lawful  business  of  employers,^  or  with  the 
conduct  of  workmen  who  may  not  choose  to  become  or  remain 
members  of  labor  organizations.^  The  right  of  action  for  dam- 
ages for  interference  with  business  or  employment  is  therefore 
not  precluded  by  statutes  expressly  legalizing  labor  combina- 
tions ;  *  and  a  law  attempting  to  absolve  from  liability  of  this 
sort  would  doubtless  be  declared  unconstitutional.  So  that 
though  labor  agreements  are  in  some  respects  legalized  in  a 
sense  in  which  capitalistic  agreements  are  not,  and  assuredly  in 
a  sense  quite  in  contrast  to  the  status  of  such  agreements  under 
the  prohibitive  statutes  of  Great  Britain  in  force  at  the  begin- 

alleged  violations  of  union  rules  (Brennan  v.  Hatters,  73  N.J.L.  729,  65  Atl. 
165 :  Brennan  was  held  not  to  be  obliged  to  pay  the  fine  or  submit  to  the  order 
of  the  union  to  give  up  his  place  for  a  year,  since  an  original  agreement  to  submit 
to  such  discipline,  even  if  made,  would  be  contrary  to  public  policy  and  therefore 
void.  See  also  Schneider  v.  Local  Union  No.  60,  116  La.  270,  40  So.  700  ;  More  v. 
Bennett.  140  111.  69,  29  N.E.  888). 

*  Tiedeman,  State  and  Federal  Control  of  Persons  and  Property,  p.  423 ; 
per  contra,  Eddy  on  Combinations,  sees.  894-897. 

»  Old  Dominion  S.S.  Co.  v.  McKenna,  30  Fed.  48 :  Goldberg  v.  Stablemen's 
Union,  149  Cal.  429,  86  Pac.  806 ;  Pierce  v.  Same.  156  Cal.  70,  103  Pac.  324 ; 
Farmers'  L.  &  T.  Co.  v.  N.  P.  R.  Co.,  60  Fed.  803  ;  Arthur  v.  Oakes,  63  Fed.  310 ; 
Loewe  v.  Lawlor,  208  U.S.  274,  28  Sup.  Ct.  301. 

»  Curran  v.  Galen,  152  N.Y.  33,  46  N.E.  297  ;  People  v.  Smith.  5  N.Y.  Cr.  509  ; 
People  V.  Walsh,  6  N.Y.  Cr.  292 ;  Cumberland  Glass  Mfg.  Co.  v.  Glass  Bottle 
Blowers'  Ass'n,  59  N.J.  Eq.  49,  46  Atl.  208;  Flaccus  v.  Smith,  199  Pa.  128,  48 
Atl.  894  ;  Lucke  v.  Clothing  Cutters,  77  Md.  396,  26  Atl.  505. 

« Frank  o.  Herold,  63  N.J.  Eq.  443.  52  Atl.  152;  Curran  v.  Galen,  supra; 
Berry  v.  Donovan,  188  Mass.  353.  74  N.E.  603 ;  Purvis  v.  United  Brotherhood, 
214  Pa.  St.  348,  63  Atl.  585. 


TRADE   AND   LABOR  ASSOCIATIONS  217 

ning  of  the  last  century,  they  are  yet  necessarily  controlled  by 
the  same  general  principles  of  law  as  are  associations  of  capital/ 
and  more  particularly  associations  of  employers.^  It  is  there- 
fore not  permissible,  in  a  study  of  trade  or  labor  associations, 
to  overlook  any  point  as  to  the  form,  nature,  purpose,  or  methods 
of  the  organization  that  would  be  pertinent  in  examining  other 
combinations,  though  the  effect  of  special  statutes  and  of  court 
decisions  will  necessarily  receive  attention. 

Section  111.  Status.  —  The  powers  of  an  incorporated  union 
are  such  as  are  given  to  it  by  its  charter,  and  any  member,  as  a 
party  in  interest  to  the  acts  and  undertakings  of  the  society, 
may  call  upon  the  courts  to  compel  the  observance  by  it  of  its 
charter  provisions.'  It  may  be  enjoined,*  and  adjudged  guilty 
of  contempt  for  the  violation  of  an  injunction,  and  fined  there- 
for, as  any  other  corporation.*  Such  a  body  cannot,  however, 
procure  an  injunction  against  a  rival  organization  to  prevent  its 
own  disruption  by  persuasion  or  other  means  calculated  to 
cause  its  members  to  abandon  the  complaining  organization; 
since  its  threatened  dissolution  gives  it  no  grievance  on  its  own 
account,  and  any  interference  with  the  rights  or  conduct  of  the 
members  is  a  matter  for  their  own  consideration  and  action.* 

The  ordinary  incidents  of  corporate  existence  attach  where  a 

•  Loewe  v.  Lawlor,  supra;  Waters-Pierce  Oil  Co.  r.  State,  48  Tex.  Civ.  App. 
162,  106  S.W.  918. 

«  Atkins  V.  Fletcher  Co.,  65  N.J.  Eq.  658,  55  Atl.  1074 ;  Willner  r.  Silverman. 
109  Md.  341,  71  Atl.  962. 

»  Flaherty  v.  Longshoremen's  Ben.  Soc,  99  Me.  25.3.  59  Atl.  58. 

•  Casey  v.  Typographical  Union,  45  Fed.  135;  CcEur  d'Alene  Consol.  Min. 
Co.  V.  Miners'  Union,  51  Fed.  260. 

•Franklin  Union  v.  People,  220  111.  355,77  N.E.  176;  Master  Horteshoers' 
Ass'n  V.  Quinlivan,  83  App.  Div.  459,  82  N.Y.  Supp.  288. 

•  Silver  State  Council  No.  1  ».  Rhoades,  7  Colo.  211,  43  Pac.  451. 


218  LAW  OF  THE   EMPLOYMENT  OP  LABOR 

labor  organization  procures  its  incorporation;  these  include 
^  the  power  to  sue  and  be  sued,  and  its  legal  and  financial  liability 
to  the  extent  of  its  funds  for  its  corporate  acts  and  proceedings, 
being  represented,  as  are  other  corporations,  by  properly  desig- 
nated and  authorized  boards  or  officials.^  What  has  been  said 
as  to  exceptional  treatment  of  labor  organizations  finds  illustra- 
tion in  this  connection,  since  such  bodies  are  permitted  to  in- 
corporate, while  the  laws  governing  corporate  action  generally 
are  made  inapplicable  to  labor  unions  by  special  provisos. 
Such  exemptions  occur  in  the  enactments  known  as  anti-trust 
laws,^  in  insurance  laws,^  and  in  the  Federal  statute  providing 
for  the  taxation  of  corporations.'*  That  these  laws  are  dis- 
criminatory in  favor  of  organized  labor  as  against  other  forms 
of  organizations  probably  no  one  would  care  to  dispute,  and  it 
has  been  broadly  intimated  that  provisions  of  this  sort  are  un- 
constitutional,^ while  on  the  other  hand,  a  clause  exempting 
labor  unions  from  the  provisions  of  an  anti-trust  law  has  been 
declared  constitutional.* 

Though  the  incorporation  of  labor  organizations  is  thus  per- 
mitted, or  even  encouraged,  they  are  for  the  most  part  unin- 
corporated, and  are  frequently  described  as  voluntary  associa- 
tions as  distinguished  from  partnerships  on  the  one  hand  and 
from  incorporated  bodies  on  the  other.  Though  they  require 
the  payment  of  an  initial  sum  on  entrance,  and  of  periodical 

1  Franklin  Union  v.  People,  supra. 

*La.,  Acts  1892.  No.  90,  sec.  8;    Mich.,  C.L.,  sec.  11382;    Mont.,  Pen.  C, 
sec.  325 ;  Nebr.,  C.S.,  sec.  5343a,  etc. 
»  Mass.,  Acts  1909,  ch.  514,  sec.  30. 

*  Act  of  Aug.  6,  1909,  36  Stat.  113. 

» Cote  V.  Murphy,  159  Pa.  St.  420,  28  Atl.  190 ;  In  re  Grice,  79  Fed.  627 ; 
Waters-Pierce  Oil  Co.  r.  State.  48  Tex.  Civ.  App.  162,  106  S.W.  918. 

•  Cleveland  v.  Anderson,  66  Nebr.  252,  92  N.W.  306. 


TRADE  AND  LABOR  ASSOCIATIONS  219 

dues,  they  are  not  thereby  constituted  associations  with  a  capi- 
tal stock ;  and  not  being  conducted  for  profit,  they  are  not  in 
general  subject  to  the  regulations  of  law  applicable  to  business 
associations,  incorporated  or  otherwise.^ 

Such  bodies  have  at  common  law  no  legal  status  or  authority, 
ranking  with  merely  social  organizations,  so  far  as  rights  and 
powers  are  concerned.^  The  charter,  so-called,  of  such  an  as- 
sociation is  not  granted  by  the  state,  but  by  a  superior  organiza- 
tion, and  is  rather  a  certificate  of  affiliation  than  a  charter. 
The  identity  of  an  organization  depends  on  its  individual  mem- 
bership and  their  mutual  agreements  rather  than  on  any  char- 
ter or  certificate  of  affiliation,  so  that  the  latter  can  be  changed 
without  affecting  the  organization  as  an  entity.'  It  conveys 
no  property  rights,  but  is  a  basis  for  such  agreements  as  persons 
wishing  to  become  members  are  supposed  to  make,  and  is  binding 
to  the  extent  at  least  of  making  conformity  thereto  obligatory 
under  penalty  of  loss  of  membership.^  The  nature  of  such 
organizations  is  in  part  the  result  of  the  mutual  agreements  of  the 
members  among  themselves  on  the  basis  of  such  charter  and 
the  constitution  and  by-laws,  which  are  construed  as  being  con- 
tracts between  the  members,^  thus  giving  rise  to  a  quasi  corpo- 
rate organization;  and  it  is  in  part  the  result  of  a  joint  interest 

»  Burt  V.  Lathrop,  52  Mich.  106,  17  N.W.  716 ;  St.  Paul  Typothetse  v.  Book- 
binders' Union,  94  Minn.  351.  102  N.W.  725. 

*  In  re  Higgins,  27  Fed.  443 ;  St.  Paul  Typothetse  v.  Bookbinders'  Union, 
supra;  Mayer  v.  Journeymen  Stone  Cutters,  47  N.J.  Eq.  519,  20  Atl.  492  ;  Bar- 
bour V.  Albany  Lodge,  73  Ga.  474  ;  Iron  Molders'  Union  v.  Allis-Chalmers  Co., 
166  Fed.  45.  91  CCA.  631. 

•Shipwrights',  etc..  Association  v.  Mitchell,  (Wash.),  HI  Pac.  780. 

<  O'Brien  v.  Musical  Protective  Union,  64  N.J.  Eq.  525,  54  .\tl.  150. 

«  Brown  v.  Stoorkel,  74  Mich.  269,  41  N.W.  921  ;  Hanimerstcin  v.  Parsons.  38 
Mo.  App.  333  ;  Hyde  v.  Woods,  94  U.S.  623 ;  Screwmen's  Ass'n  v.  Benson,  75 
Texas  555.  13  S.W.  380. 


220  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

of  the  members  in  any  funds  or  property  accumulated  by  the 
association  or  by  its  agents  or  trustees,  which,  together  with  the 
fact  that  there  is  no  responsible  entity  formed  by  incorpora- 
tion of  any  sort,  leaving  the  individual  members  answerable  for 
the  debts  and  acts  of  the  association,  gives  to  such  associa- 
tions at  least  some  of  the  aspects  of  a  partnership,^  The  rule 
as  to  partnership  funds  is  also  applicable,  so  that  where  an  ac- 
tion is  brought  against  an  unincorporated  association,  its  funds 
will  be  exhausted  before  the  property  of  individual  members  is 
attached.^ 

The  cases  above  cited  are  mainly  those  in  which  the  rights 
of  nonmembers  were  affected.  The  case  is  different  when 
persons  in  the  relation  of  fellow-members,  bound  by  mutual 
agreements,  raise  questions  within  the  association;  and  where 
the  property  of  the  association  has  been  the  subject  of  litigation 
between  members  it  has  been  held  that  the  laws  applicable  to 
corporations  come  into  play.^  In  the  Barrett  case  the  court 
went  so  far  as  to  deny  altogether  that  a  voluntary  association 
not  for  profit  partakes  of  the  nature  of  a  partnership,*  though 
this  may  be  regarded  as  a  result  of  an  exclusive  consideration 
of  the  point  in  issue,  which  was  the  right  of  a  withdrawing  mem- 
ber to  retain  a  portion  of  the  union  funds  which  was  at  the  time 

*  Karges  Furniture  Co.  v.  Amalgamated  Woodworkers,  165  Ind.  421,  75  N.E. 
877 ;  Atkins  v.  Fletcher  Co.,  65  N.J.  Eq.  658,  55  Atl.  1074 ;  Patch  Mfg.  Co.  r. 
Capeless,  79  Vt.  1,  63  Atl.  938 ;  Allis-Chalmers  Co.  v.  Iron  Molders'  Union,  150 
Fed.  155;  Patterson  v.  District  Council,  31  Pa.  Super.  112;  Rhode  v.  United 
States,  38  Wash.  L.  R.  26,  34  App.  D.C.  249. 

*  Inbusch  V.  Farwell,  66  U.S.  566  ;  Branson  v.  Industrial  Workers  of  the  World, 
30  Nev.  270,  95  Pac.  354. 

»  Niblack  on  Societies,  221 ;  Local  Union  No.  1,  Textile  Workers  v.  Barrett,  19 
R.I.  663,  36  Atl.  5  ;  Rhode  v.  United  States,  supra. 

*  See  also  Richmond  v.  Judy,  6  Mo.  App.  465;  Brown  v.  Stoerkel,  supra; 
St.  Paul  Typothetse  ti.  St.  Paul  Bookbinders'  Union,  aupra. 


TRADE  AND  L.VBOR  ASSOCIATIONS  221 

in  his  hands.  The  court  ruled  that  there  was  no  partnership 
interest  in  any  member  giving  him  a  right  to  any  share,  propor- 
tionate or  otherwise,  in  the  funds  or  property  of  the  association. 
"He  has  merely  the  use  and  enjoyment  of  it  while  a  member, 
the  property  belonging  to  and  remaining  with  the  society,"  a 
view  which  is  clearly  correct,  though  it  involves  the  imputation 
of  a  measure  of  corporate  rights  to  a  voluntary  association.  In 
the  strict  application  of  the  common  law  rule,  however,  volun- 
tary associations  of  this  nature  cannot  be  recognized  in  their 
collective  capacity  and  name  as  having  any  legal  existence  apart 
from  their  members ;  they  cannot,  therefore,  sue  nor  be  sued, 
and  it  has  been  held  that  if  incapacity  is  pleaded,  an  injunction 
will  not  lie  against  such  an  association,^  and  that  no  judgment 
will  lie  against  an  unincorporated  union  even  though  it  has  an- 
swered as  defendant ;  ^  though  the  court  held  in  the  latter  case 
that  an  injunction  would  properly  issue  against  a  trade-union 
by  name,  and  would  operate  to  restrain  all  members  who  had 
knowledge  of  it.^  It  was  held  on  appeal  in  the  Allis-Chalmers 
case  that  where  an  action  has  been  begun  as  against  an  associa- 
tion, and  an  answer  has  been  made  on  behalf  and  in  the  name 
of  the  association,  the  question  of  incompetency  not  being 
raised,  proceedings  had  will  bind  the  association,  and  no  ques- 
tion of  incompetency  will  be  heard  on  appeal.'*    The  question 

•  Karges  Furniture  Co.  v.  Amalgamated  Woodworkers,  165  Ind.  421,  75  N.E. 
877 ;  Pickett  v.  Walsh,  192  Mass.  572,  78  N.E.  753. 

*  Allis-Chalmers  Co.  v.  Iron  Molders'  Union,  150  Fed.  155. 

« See  also  Iron  Molders'  Union  v.  Allis-Chalmers  Co.,  166  Fed.  46,  91  CCA. 
631 ;  Jonaa  Glass  Co.  v.  Glass  Bottle  Blowers'  Ass'n.,  72  N.J.  Eq.  653,  66  Atl. 
953;  In  re  Debs,  148  U.S.  564,  15  Sup.  Ct.  900;  American  Steel  &  Wire  Co.  v. 
Wire  Drawers,  90  Fed.  608,  and  cases  there  cited. 

«Iron  Moldora'  Union  v.  Allis-Chalmers  Co.,  166  Fed.  45,  91  C.C..\.  631; 
Barnes  &  Co.  v.  Chicago  Typographical  Union,  232  111.  404,  83  N.E.  932. 


222  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

is  inevitable  also  as  to  the  effect  of  the  violation  of  an  injunction 
issued  against  an  association,  and  in  what  form  punishment  for 
contempt  can  be  directed  against  the  organization;  and  it 
appears  that  the  rule  that  no  judgment  will  lie  against  an  unin- 
corporated body  would  necessarily  give  way  when  that  body 
has  disregarded  an  order  of  the  court  directed  specifically  to  it. 
As  the  punishment  of  an  association  considered  in  its  corporate 
nature  can  be  strictly  only  by  a  fine,  the  property  of  the  associa- 
tion would  first  come  under  the  hand  of  the  court  in  the  satis- 
faction demanded ;  ^  but  on  account  of  the  partnership  nature 
of  voluntary  associations,  the  members'  property  may  be  at- 
tached, on  a  proper  showing,^  or  the  members  and  oflEicers 
imprisoned,  where  the  punishment  is  for  contempts  or  criminal 
acts,^  since  the  law  will  not  be  placed  in  the  position  of  pro- 
nouncing penalties  upon  an  abstraction  such  as  an  intangible 
organization,  leaving  the  members  free  to  disobey  the  orders  of 
the  court  with  impunity. 

In  the  absence  of  statutes  fixing  the  capacity  of  an  unincor- 
porated association  it  has  been  held  in  many  cases  that  actions 
may  be  had  by  or  against  the  members  as  individuals  only,  who 
may  sue  or  be  sued  either  by  joining  all  of  them,  or  one  or  more 
for  all,  if  the  numbers  make  it  impracticable  to  join  all.*  In 
the  case  last  cited  it  was  stated  that  the  rule  generally  followed 
in   Massachusetts   requires   the   members   to   be   individually 


•  Barnes  &  Co.  v.  Chicago  Typographical  Union,  supra. 

»  Patch  Mfg.  Co.  V.  Capeless,  79  Vt.  1,  63  Atl.  938  ;  Patterson  c.  District  Coun- 
cil, supra;  Branson  v.  Industrial  Workers  of  the  World,  supra. 

»  U.S.  V.  Debs,  64  Fed.  724 ;  In  re  Debs,  158  U.S.  564,  15  Sup.  Ct.  900. 

*  Allis-Chalmers  Co.  v.  Iron  Molders'  Union,  150  Fed.  155  ;  Cieland  v.  Ander- 
son, 66  Nebr.  252,  92  N.W.  306 ;  St.  Paul  Typothetse  v.  Bookbinders'  Union, 
tupra;  Pickett  v.  Walsh,  192  Mass.  572,  78  N.E.  753. 


TRADE  AND  LABOR  ASSOCIATIONS  223 

joined  in  suits  at  law,  while  in  equity  proceedings  representative 
members  may  be  taken  for  a  numerous  class. 

On  the  other  hand  are  the  cases  already  cited  in  which  the 
union  was  regarded  as  an  entity,  and  as  such  held  liable  in 
damages.  In  this  view,  damages  may  be  assessed  against  an 
organization  in  an  action  against  it  alone,^  or  against  a  union  as 
a  joint  wrongdoer  with  a  designated  person  or  persons  j^  and  a 
nonsuit  was  upheld  by  a  federal  judge  in  a  case  where  the 
plaintiff  sought  to  recover  damages  for  a  violated  contract  of  an 
unincorporated  society  against  four  members  who  were  sued 
"individually  and  for  themselves  and  for  others,  officers  and 
members  of  the  unincorporated  association."  ^ 

The  matter  may  be  settled  by  legislation  authorizing  the 
bringing  of  actions  at  law  or  suits  in  equity  by  or  against  unin- 
corporated associations  having  some  distinguishing  name  or 
designation  by  such  title ;  *  or  by  a  law  authorizing  one  of  a 
number  of  persons  jointly  concerned  as  plaintiffs  or  defendants 
to  appear  for  all.*     A  law  of  the  former  class,*  granting  the 

*  Purvis  V.  Brotherhood  of  Carpenters  and  Joiners,  214  Pa.  St.  348,  63  Atl.  685. 

*  Wyeraan  v.  Deady,  79  Conn.  414,  65  Atl.  129  (Deady  was  the  business 
agent  of  the  union) ;  Branson  v.  Industrial  Workers  of  the  World,  supra. 

*  Ehrlich  v.  Willenski,  138  Fed.  425,  citing  Ash  v.  Guie,  97  Pa.  493,  39  Am.  Rep. 
818 ;  Pain  v.  Sample,  158  Pa.  428,  27  Atl.  1107.  (This  case  evidently  turned  on  a 
classi6cation  of  the  union  as  a  beneBcial  society,  coming  under  a  statute  of  the 
state  (B.  P.  Dig.  p.  219,  sec.  16)  by  which  members  of  such  societies  were  relieved 
from  personal  liability  for  the  obligations  of  the  society,  which  might  be  proper 
if  a  breach  of  contract  only  was  under  consideration,  but  which  could  hardly  be 
fairly  applicable  in  many  cases  where  union  activities  were  under  consideration.) 

*  Mich.,  C.L.,  sec.  10025;  Conn.,  G.S.,  sec.  583;  N.  J.,  G.  S.,  p.  2588;  Vt., 
P.S.,  sec.  1448. 

» Ind.,  A.S.,  sec.  270  (see  Sourae  r.  Marshall,  23  Ind.  194) ;  Ohio,  Gen.  Code, 
Bee.  11257  (sec  Kealey  v.  Faulkner,  18  Ohio  S.  &  C.  P.  Dec.  498) ;  Nev.,  C.L..  sec 
3109  (see  Branson  v.  Industrial  Workers  of  the  World,  supra). 

*  Mich.,  C.L..  SCO.  10025. 


224  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

right  of  action  against  the  organization  without  limiting  the 
common  law  right  to  proceed  against  the  members  as  partners, 
was  held  to  be  constitutional  and  applicable  to  a  labor  organiza- 
tion.^ The  action  of  the  court  in  the  case  in  which  a  nonsuit 
was  granted  on  account  of  the  action  being  brought  against 
certain  members  of  the  union  rather  than  against  the  union  as 
a  whole  2  would  restrict  recovery  of  damages  in  a  civil  action 
to  the  funds  of  the  association,  which  corresponds  to  an  action 
against  a  corporation.  As  pointed  out  in  the  note,  supra,  this 
view  rests  on  a  statute  of  the  state  of  Pennsylvania. 

As  to  the  contracts  of  an  unincorporated  association,  the  in- 
dividual members  are  liable  at  common  law  either  because  they 
held  themselves  out  as  agents  of  a  principal  that  had  no  existence, 
or  because  they  are  themselves  principals,  since  there  is  no  other 
in  existence.'  Part  of  the  members  cannot  sue  others  on  a 
contract  of  an  association ;  *  or  for  tort  on  account  of  the  neg- 
ligence of  one  employed  by  the  association,  since  any  such  per- 
son is  as  much  the  employee  of  the  aggrieved  party  as  of  his 
associates.^  In  this  ruling  the  law  of  principal  and  agent  is 
brought  into  view,  which  was  formally  held  to  apply  in  a  case 
involving  contracts  between  two  unincorporated  associations.® 
The  agency  must  be  clearly  made  out,  when  a  contract  is  the 
subject  of  action,  since  no  individual  member's  liabiUty  will  be 
presumed  from  the  mere  fact  of  association.^ 

»  U.S.  Heater  Co.  v.  Iron  Molders'  Union,  129  Mich.  354,  88  N.W.  889. 

»  Ehrlich  v.  Willenski,  supra.     '  Lewis  v.  Tilton,  64  Iowa  220,  19  N.W.  911. 

*  McMahon  v.  Rauhr,  47  N.Y.  67. 

»  Martin  v.  N.P.B.  Ass'n.,  68  Minn.  521,  71  N.W.  701. 

« St.  Paul  Typothetae  v.  St.  Paul  Bookbinders'  Union,  supra,  citing  Ehrman- 
traut  V.  Robinson,  52  Minn.  335,  54  N.W.  188. 

'  Richmond  v.  Judy,  6  Mo.  App.  465.  See  also  Lawior  v.  Loewe,  187  Fed.  522 
(C.C.A.). 


TRADE  AND  LABOR  ASSOCIATIONS  225 

Being  voluntary  associations,  their  maintenance  and  preser- 
vation or  the  continued  membership  therein  of  any  individual 
is  not  a  subject  that  the  courts  can  undertake  to  direct  or  se- 
cure/ though  members  will  be  protected  against  improper 
expulsion  or  other  action  depriving  them  of  valuable  status  or 
of  property  in  union  funds,  tools,  or  other  advantages.^ 

It  is  obvious  that  in  many  respects  courts  of  equity  are  better 
adapted  to  the  determination  of  the  rights  of  such  bodies  and 
of  persons  in  controversy  with  them,  since  their  intangible  na- 
ture and  the  frequent  inaccessibility  or  nonexistence  of  associa- 
tion funds  make  proceedings  against  the  persons  of  individuals 
the  only  method  of  enforcing  rights,  which  is  a  method  of  pro- 
cedure for  which  courts  of  equity  are  especially  adapted,  the 
judgments  of  law  courts  being  generally  enforced  against  a 
designated  fund  or  object  by  proceedings  in  rem;  there  is,  how- 
ever, a  growing  tendency  to  sink  the  distinctions  between  the 
two  forms  of  procedure.  Under  the  English  common  law,  an 
unincorporated  association  could  not  come  into  court  for  any 
redress  whatsoever  of  collective  grievances,  since  the  granting 
of  charters  of  incorporation  was  a  jealously  guarded  fimction  of 
the  state,  and  no  body  of  men  could  by  associating  themselves 
together  without  such  a  charter  arrogate  to  themselves  any  of 
the  functions  of  an  entity  independent  of  and  apart  from  the 
individuals  composing  it.'  A  treasurer  might  therefore  em- 
bezzle the  association  funds  with  impunity.*  This  has  been 
made  the  subject  of  statutory  provision,  however,  so  that  there 

•O'Brien  r.  Musical  M.  P.  &  B.  Union,  64  N.J.  Eq.  525,  54  Atl.  150. 

«  O'Brien  v.  Musical  M.  P.  «t  B.  U..  supra;  Weiss  v.  Same,  189  Pa.  St.  446.  42 
Atl.  118;  Steinert  r.  United  Brotherhood,  91  Minn.  189.  97  N.W.  668;  Cotton 
Jammers,  etc.,  v.  Taylor,  23  Tex.  Civ.  App.  367,  56  S.W.  .'J53. 

•  Lloyd  V.  Loring,  6  Yes.  773.  *  Eric,  Trade  Unions,  p.  4. 

Q 


226  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

is  now  a  right  in  the  members  representing  an  association  to 
proceed  against  a  defaulting  officer  for  the  recovery  of  associa- 
tion property.^  There  is  in  the  United  States  no  question  as 
to  the  right  of  an  association  not  formed  for  illegal  purposes  to 
maintain  an  action  for  the  recovery  of  its  funds.^ 

Section  1 12.  Rules,  By-laws,  etc.  —  The  constitutions,  rules, 
by-laws,  or  by  whatever  name  called,  the  agreements  accepted 
and  entered  into  by  the  members  of  associations  are  contracts 
between  themselves,  and  in  so  far  as  they  are  legitimate,  will, 
on  a  proper  showing,  be  enforced  by  the  courts.^  While  a  de- 
gree of  restraint  of  trade  is  involved  in  every  agreement  not  to 
accept  employment  except  under  conditions  conforming  to  a 
rule  fixed  by  an  association,  this  fact  alone  does  not  invalidate 
such  rule,  so  far  as  internal  administration  is  concerned,  but  the 
extent,  purpose,  and  methods  of  enforcement  of  such  agreements 
may  bring  them  under  the  ban  of  the  law.  A  man  cannot  enter 
into  a  valid  contract  to  the  injury  of  a  third  party  or  the 
prejudice  of  the  pubUc,*  and  what  an  individual  cannot  lawfully 
do  alone  he  cannot  do  by  union  with  others,  so  that  an  agree- 
ment to  surrender  industrial  freedom  to  an  association  is  invalid 
and  may  vitiate  the  entire  basis  of  an  association's  agreements.^ 
Thus  an  association  was  not  allowed  to  enforce  a  fine  against  a 
member  who  had  bid  less  for  a  piece  of  work  than  the  rate  fixed 
by  the  association  of  which  he  was  a  member,  though  the  fine 


1  31  <t  32  Vict.,  ch.  116.     See  R.  v.  Blackburn,  C.C.C,  Dec.  17,  1868. 

»  Snow  V.  Wheeler,  113  Mass.  179 ;  Brown  v.  Stoerkel,  74  Mich.  269,  41  N.W. 
921 ;  Rhode  v.  United  States,  38  Wash.  L.  Rep.  26,  34  App.  D.C.  249. 

»  Flaherty  v.  Portland  Longshoremen's  B.  Soc,  99  Me.  253,  59  Atl.  68 ;  Brown 
V.  Stoerkel,  74  Mich.  269,  41  N.W.  921. 

*  Crawford  v.  Wick,  18  Ohio  St.  190,  98  Am.  Dec.  103. 

»  Kealey  v.  Faulkner,  18  Ohio  S.  4  C.  P.  Dec.  498. 


TRADE  AND  LABOR  ASSOCIATIONS  227 

was  assessed  in  accordance  with  the  rules;  and  this  on  the 
ground  that  while  there  was  not  an  actual  monopoly  or  control 
of  the  class  of  services  involved,  so  far  as  the  agreement  went 
it  was  restrictive  of  competition,  and  subject  to  the  same  legal 
objection  as  a  more  extensive  combination.^  The  court  in  this 
case  went  no  further  than  to  refuse  to  lend  its  aid  in  the  collec- 
tion of  the  fine,  but  a  rule  that  prescribes  the  violation  of  con- 
tracts or  a  refusal  to  handle  interstate  commerce  from  a  pro- 
scribed railway,  or  otherwise  brings  about  a  conflict  with  public 
policy,  will  not  only  not  be  enforced,  but  will  be  made  the  sub- 
ject of  judicial  condemnation,^  even  to  the  extent  of  the  disso- 
lution of  the  offending  association.^  It  has  been  held  that 
courts  have  no  visitorial  power  to  determine  the  reasonableness 
or  otherwise  of  the  rules  of  an  association,  the  only  question 
being  as  to  whether  or  not  they  have  been  adopted  according 
to  the  agreed  methods  of  the  body  concerned ;  *  but  it  is  obvious 
that  this  can  relate  only  to  the  rules  as  such,  and  not  to  their 
enforcement  or  operation.  If  no  property  rights  are  involved, 
the  enforcement  of  the  rules  will  in  general  be  left  to  the  organi- 
zations themselves,  and  the  courts  will  not  intervene  in  such 
voluntary  and  personal  matters  as  are  usually  involved  in  as- 
sociation arrangements ;  ^  but  where  there  are  valuable  rights, 
as  of  tools  or  other  property,  or  benefit  or  insurance  funds,  or  if 

>  More  V.  Bennett.  140  111.  69. 29  N.E.  888.  See  also  Bailey  v.  Master  Plumb- 
ers, 103  Tcnn.  99,  52  S.W.  85.3. 

»  Watcrhouse  v.  Comer.  55  Fed.  149;  Gatzow  v.  Buening.  106  Wis.  1,  81  N.W. 
1003. 

»  Kealey  v.  Faulkner,  supra. 

*  Green  r.  Felton.  42  Ind.  App.  675.  84  N.E.  166. 

•O'Brien  v.  Musical  P.  &  B.  Union,  64  N.J.  Eq.  525.  54  Atl.  150;  Screw- 
men's,  etc.,  Ass'n.  v.  Benson.  75  Texas  555,  13  S.W.  380 ;  Jetton-Dcklc  Lumber 
Co.  V.  Mather,  63  Fla.  969,  43  So.  690. 


228  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

privileges  of  employment  are  affected,  the  courts  will  see  that 
the  rules  are  strictly  complied  with  for  the  protection  of  mem- 
bers in  their  rights  thereunder;  ^  so  also  in  regard  to  objections 
of  members  against  acts  alleged  to  be  outside  the  scope  and  pur- 
pose of  the  organization  as  indicated  by  its  regulations ;  and  any 
member  is  entitled  by  his  rights  as  such  to  call  on  the  courts  to 
enjoin  a  departure  by  the  organization  from  its  proper  field  of 
action.^  Courts  have  also  gone  so  far  as  to  pronounce  existing 
rules  and  by-laws  inadequate  to  protect  the  members'  rights, 
or  unreasonable  and  void  as  determinative  of  a  member's  just 
rights.' 

Not  every  rule  that  is  unenforceable  at  law  is,  therefore,  void, 
but  the  courts  will  say  no  more  than  that  the  persons  party  to 
such  agreements  are  left  to  their  own  contracts,  unless  actually 
unlawful ;  and  no  legal  sanction  of  such  border  line  agreements, 
as,  for  instance,  those  in  restraint  of  trade,  will  be  given.* 
Where  the  enforcement  of  such  rules  by  a  union  is  shown  to 
work  injustice  upon  a  member,  he  may  by  repudiating  his  agree- 
ment, recover  upon  an  independent  ground  of  action,  his  agree- 
ment being  contrary  to  public  policy.^  And  an  employer's 
right  to  a  free  labor  market  will  support  his  right  to  an  injunc- 
tion to  prevent  the  enforcement  of  the  rules  of  a  labor  organiza- 

»  Steinert  v.  Carpenters  and  Joiners.  91  Minn.  189,  97  N.W.  668 ;  Flaherty  r. 
Longshoremen's  Beneficial  Soc,  supra;  Brennan  v.  Hatters,  73  N.J.L.  729,  65 
Atl.  165;  Thompson  v.  Locomotive  Engineers,  41  Texas  Civ.  App.  176,  91  S.W. 
834. 

*  Flaherty  v.  Longshoremen,  supra ;  Otto  v.  Journeymen  Tailors,  75  Cal. 
308,  17  Pac.  217. 

'People  V.  Musical  M.P.U.,  118  N.Y.  101,23  N.E.  129;  Cotton  Jammers', 
etc.,  Ass'n.  v.  Taylor,  23  Texas  Civ.  App.  367,  66  S.W.  553. 

*  O'Brien  r.  Musical  M.P.  &  B.U.,  supra. 

*  Brennan  »,  Hatters,  supra. 


TRADE  AND  LABOR  ASSOCIATIONS  229 

tion  by  means  of  fines  and  penalties  against  its  members  who 
may  wish  to  continue  in  or  to  enter  his  employment.^  It 
follows  that  rules  and  penalties  directed  against  persons  not 
members  of  the  association  are  void,  since  no  one  can  be  required 
to  purchase  his  freedom  to  earn  a  livelihood  by  submission  to 
regulations  imposed  upon  him  by  other  than  governmental 
agencies.^ 

It  has  occurred  in  actions  against  persons  who  were  members 
or  officers  of  labor  organizations  that  the  defense  was  offered 
that  the  acts  complained  of  were  done  only  as  carrying  out  the 
rules  and  orders  of  the  union.  From  what  has  been  said  as  to 
the  status  and  character  of  voluntary  associations,  it  is  apparent 
that  such  a  defense  could  not  be  allowed,  and  the  courts  so  hold,^ 
intimating  broadly  that  the  existence  of  rules  prescribing  such 
conduct  as  was  made  the  ground  of  the  action  was  in  itself  proof 

>  Willcut  &  Sons  Co.  v.  Bricklayers'  Union,  200  Mass.  110,  85  N.E.  879 ;  Jersey 
City  Printing  Co.  v.  Cassidy.  63  N.J.  Eq.  759.  53  Atl.  230 ;  Longshore  Printing 
Co.  V.  Howeii,  26  Ore.  527,  38  Pac.  547. 

»  March  v.  Bricklayers',  etc.,  Union,  79  Conn.  7,  63  Atl.  291 ;  Union  P.R.  Co. 
p.  Ruef,  120  Fed.  102 ;  Carew  v.  Rutherford,  100  Mass.  1,  8  Am.  Rep.  287 ;  Erd- 
man  v.  Mitchell,  207  Pa.  79,  56  Atl.  327 ;  Pickett  v.  Walsh,  192  Mass.  572,  78 
N.E.  753  ;  Burke  v.  Fay,  128  Mo.  App.  690,  107  S.W.  408.  In  the  March  case  a 
penalty  was  assessed  against  a  brick  manufacturer  who  had  sold  bricks  to  an 
"unfair"  boss  mason,  and  subsequently  to  an  employer  of  union  labor.  This 
latter  employer  was  threatened  with  a  strike  unless  he  would  guarantee  the 
payment  of  the  fine  against  March.  This  he  did,  and  afterwards  paid  the  fine, 
withholding  the  amount  out  of  money  due  March,  who  then  sued  the  union  to 
recover  the  sum.  In  this  he  was  successful,  the  court  holding  that  the  money  was 
secured  by  threat,  and  not  at  ail  in  the  way  of  the  adjustment  of  the  terms  of 
trade  competition ;  though  even  this  would  not  have  justified  the  methods  used 
to  procure  the  payment  of  the  money.     See  further,  note,  p.  215. 

'  Gatzow  V.  Buening,  106  Wis.  1,  81  N.W.  1003  (Buening.  as  secretary  of  a 
liverymen's  association  ordered  a  hearse  and  carriages  driven  away  from  a 
funeral  because  the  undertaker  was  not  a  member)  ;  Boutwell  r.  Marr,  71  Vt. 
1,  42  Atl.  607  (defendants  withheld  business  from  Boutwell  on  account  of  an 
agreement  under  penalty  to  deal  only  with  members  of  the  association). 


230  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

of  an  illegal  purpose.  It  may  be  said,  therefore,  that  obedience 
to  such  rules,  instead  of  being  matter  of  defense,  would  rather 
be  construed  as  an  offense  in  itself,  the  rules  being  evidence  of 
an  unlawful  purpose,  as  against  public  policy.  The  general 
limitation  on  rules  of  associations  is  succinctly  stated  in  a  case 
in  which  it  was  said  that  they  must  not  be  in  violation  of  the 
laws  of  the  land,  or  of  any  inalienable  right  of  the  members.^ 

Where  a  labor  organization  has  been  enjoined  from  interfer- 
ing with  the  employment  of  members  of  another,  an  act,  the 
purpose  and  effect  of  which  are  to  interfere  with  such  persons, 
is  a  violation  of  the  injunction,  and  the  claim  that  such  an  act 
was  performed  merely  as  carrying  out  the  rules  of  a  voluntary 
association  is  no  defense.^ 

Section  113.  Membership.  —  The  rights  of  members  of  labor 
organizations  are  necessarily  chiefly  controlled  by  the  terms  of 
agreement  embodied  in  the  constitutions  and  by-laws  of  the 
organizations  themselves.  The  effect  of  such  agreements  and 
the  limitations  of  members'  rights  thereunder  have  been  con- 
sidered in  part  in  the  foregoing  section.  Members  will  in  general 
be  held  to  look  to  the  rules  for  their  rights,  and  actions  taken 
under  such  rules  will  not  be  interfered  with  unless  there  is  proof 
of  the  violation  of  civil  rights  or  of  a  failure  of  the  organization 
to  carry  out  the  provisions  of  its  own  regulations.^  Expulsion 
is  the  extreme  penalty  enforceable  by  an  organization  of  this 
class,  the  collection  of  coercive  or  penal  fines  not  being  favored 
on  account  of  the  restrictive  features  frequently  contained  in 

I  Otto  V.  Journeymen  Tailors.  75  Cal.  308,  17  Pac.  217. 

*  Chicago  Federation  of  Musicians  v.  American  Musicians'  Union,  139  111. 
App.  65. 

'Screwmen's,  etc.,  Asa'n.  v.  Benson,  75  Tex.  555,  13  S.W.  380;  Otto  t. 
Journeymen  Tailors,  75  Cal.  308,  17  Pac.  217. 


TRADE  AND  LABOR  ASSOCIATIONS  231 

the  rules.  It  has  been  said  that  no  mandatory  injunction  could 
properly  issue  to  compel  restoration  to  membership  of  one  ex- 
pelled from  a  society,  as  a  party  cannot  be  compelled  by  in- 
junction to  undo  what  he  has  done;^  but  the  weight  of  au- 
thority is  on  the  other  side,  and  where  the  rules  are  shown  to 
be  inadequate  to  protect  a  member's  rights,-  or  have  not  been 
complied  with  in  due  form,^  or  if  their  enforcement  would  be 
against  public  policy,^  a  mandamus  will  issue  for  a  restoration 
to  membership.  This  does  not  preclude  the  right  to  redress 
for  damages  shown  to  have  accrued  as  the  result  of  such  im- 
proper expulsion,  and  the  issue  of  the  mandamus  may  be  re- 
garded as  supporting  the  claim  for  such  damages.*  Besides 
material  interests,  the  standing  and  character  of  organized  labor 
as  affecting  opportunities  of  employment  may  come  into  ac- 
count in  reckoning  the  value  of  membership  in  a  labor  organiza- 
tion.® A  member  seeking  restoration  to  membership  will  be 
required  to  exhaust  the  means  of  redress  offered  him  wathin  the 
organization  before  the  courts  will  take  cognizance  of  his  alleged 
grievances ;  "^  though  this  rule  will  not  be  enforced  where  dam- 
ages are  sought  for  the  violation  of  property  rights.^  Where 
loss  of  employment  is  caused  by  unlawful  suspension,  restora- 
tion by  the  union  leaves  the  matter  of  damages  open  to  trial  at 

1  Champion  v.  Hannahan,  128  111.  App.  387. 

»  People  V.  Musical  M.P.U.,  118  N.Y.  101.  23  N.E.  129. 

»  Weiss  V.  Musical  M.P.U.,  189  Pa.  St.  446,42  Atl.  118;  Cotton  Jammera*. 
etc.,  Ass'n.  v.  Taylor,  23  Texas  Civ.  App.  367,  56  S.W.  553 ;  Dingwall  v.  Asso- 
ciation, 4  Cal.  App.  565,  88  Pac.  597. 

*  Schneider  v.  Local  Union,  116  La.  270,  40  So.  700. 
'  People  V.  Musical  M.P.U.,  supra. 

« Campbell  v.  Johnson,  167  Fed.  102,  92  CCA.  554. 

'Harris  v.  Detroit  Typographical  Union.  144  Mich.  422,  108  N.W.  362;  St 
Louis  S.  W.  R.  Co.  V.  Thompson,  102  Tex.  89,  113  S.W.  144. 

•  St.  Louis  S.W.R.  Co.  v.  Thompson,  axipra. 


232  LAW  OF  THE   EMPLOYMENT   OF  LABOR 

law,  and  a  statement  by  the  union  that  it  provides  adequate 
means  of  redress  will  not  prevent  the  court  from  taking  the  ques- 
tion under  consideration  and  rendering  judgment  according  to 
the  whole  evidence ;  ^  so  also  where  the  injured  person  takes  an 
appeal  within  the  union  on  the  matter  of  improper  procedure 
under  the  rules,  since  such  an  appeal  cannot  be  construed  as 
waiving  one's  legal  right  to  damages  resulting  from  the  pro- 
cedure of  which  complaint  is  made.^  If  the  expulsion  was 
procured  by  the  interposition  of  a  third  party,  such  party  may 
be  joined  as  a  defendant  in  an  action  for  damages ;  but  inas- 
much as  he  alone  could  not  have  effected  the  expulsion,  he  can- 
not be  held  alone  responsible  therefor.^ 

It  has  already  been  pointed  out  that  a  member  may  obtain 
redress  against  a  union,  either  where  the  rules  have  not  been 
complied  with  or  where  they  do  not  offer  adequate  redress  for 
grievances  resulting  from  injurious  and  unwarranted  action  by 
the  union  in  its  official  proceedings ;  and  that  this  may  extend 
so  far  as  to  procure  the  dissolution  of  a  union  and  the  distribu- 
tion of  its  funds  on  the  complaint  of  members  unfairly  dealt 
with,  on  a  showing  that  the  basis  of  the  organization  is  an  illegal 
agreement  in  restraint  of  trade,  the  agreement  being  disaffirmed 
by  the  complaining  members ;  *  the  courts  would,  however, 
refuse  to  seek  to  secure  any  rights  claimed  by  members  within 
such  an  organization.  Where  the  conduct  complained  of  is 
that  of  an  employee  or  agent  of  the  association,  no  redress  can  be 
had  by  a  member  unless  against  the  person  guilty  of  the  wrong 
complained  of  .^ 

»  Campbell  v.  Johnson,  167  Fed.  102,  92  CCA.  554. 

»  Blanchard  v.  District  CouncU,  77  N.  J.L.  389,  71  Atl.  1131. 

*  St.  Louis  S.  W.  R.  Co.  v.  Thompson,  supra. 

*  Kealey  v.  Faulkner,  18  Ohio  S.  &  CP.  Dec.  498. 

*  Martin  v.  N.P.  Ben.  Asa'n.,  68  Minn.  521,  71  N.W.  701. 


TRADE  AND  LABOR  ASSOCIATIONS  233 

Applicants  for  membership  must,  of  course,  comply  with  the 
requirements  prescribed  for  admission  to  such  membership, 
and  no  one  can  demand  admission  as  a  right.  On  the  other 
hand,  an  association  can  make  no  claim  on  anyone  not  a  member 
on  account  of  benefits  for  protection,  so  called,  on  the  ground 
that  it  allowed  him  to  work  for  a  time  on  jobs  on  which  its 
members  were  engaged,  or  on  other  grounds,  since  the  right  of 
employment  is  one  of  a  free  citizen,  and  does  not  depend  on  the 
approval  of  any  association  or  body  of  men.^  Representations 
made  by  applicants  for  membership  are  not  necessarily  guar- 
antees, but  are  to  be  reasonably  construed  as  expressions  of  the 
applicant's  belief ;  as,  for  instance,  where  a  workman  declares 
himself  able  to  command  the  average  wages  of  his  trade. 
Forfeiture  of  prehminary  payments  on  the  amount  of  the  initia- 
tion fee,  the  return  of  which  to  a  rejected  applicant  is  conditioned 
on  the  correctness  of  the  statements  made  by  him  in  his  appli- 
cation, is  not  warranted  therefore  on  the  ground  that  he  was  not 
finally  regarded  by  the  union  as  competent,  though  it  was  within 
their  power  to  reject  his  application.^  Representations  must  be 
in  good  faith,  however,  and  the  courts  will  decide  matters  of 
fact  submitted  to  them  in  the  course  of  controversy;  fraud  or 
falsity  will  be  held  by  them  as  sufficient  grounds  for  refusing  as- 
sistance to  an  expelled  member  who  is  shown  to  be  guilty  thereof.^ 

While  a  member  of  a  labor  organization  may  join  an  outside 
person  as  defendant  in  a  suit  for  damages  for  procuring  his  ex- 
pulsion therefrom,  he  has  as  a  matter  of  common  law  no  recovery 
against  an  employer  who  may  insist  on  his  withdrawal  from  a 

>  Levin  v.  Cosgrove,  75  N.J.L.  344,  67  Atl.  1070. 
•  Levin  v.  Cosgrove,  supra. 

»  Parkinson  Co.  r.  Building  Trades  Council,  154  Cal.  581,  98  Pac.  1027; 
Krause  v.  Sander,  122  N.Y.  Supp.  54. 


234  LAW  OF  THE   EMPLOYMENT   OF  LABOR 

union  as  a  condition  of  employment,  since  it  is  a  part  of  the 
freedom  of  contract  of  either  party  to  make  or  refrain  from  such 
contracts  on  whatever  grounds  seem  to  them  sufficient.^  A 
number  of  states  have  undertaken  to  regulate  this  subject  by 
statute,  providing  penalties  against  employers  who  make  it  a 
condition  that  their  employees  shall  not  become  or  remain 
members  of  labor  organizations.^  With  practical  unanimity 
this  type  of  statute  has  been  declared  unconstitutional,  as  in- 
terfering with  the  rights  of  all  men  voluntarily  contracting  to 
make  or  continue  their  contracts  in  accordance  with  their  own 
choice,  so  long  as  nothing  injurious  to  the  public  interest  is  in- 
volved. Furthermore,  such  laws  restrict  the  freedom  of  a 
certain  class  of  individuals,  and  are  held  void  as  infringing  on 
the  rights  of  such  persons  in  the  formation  of  contracts.^  The 
sole  exception  to  this  view  appears  to  be  a  ruling  by  an  Ohio 
court  that  the  law  of  that  state  was  constitutional,  since  it  did 
not  interfere  with  the  right  to  discharge,  but  only  prohibited 
coercing  or  attempting  to  coerce  an  employee  into  quitting  a 
union.*  Such  a  ruling  leaves  the  law  on  the  statute  books,  but 
takes  away  any  practical  effect  it  may  have  been  assumed  ever 
to  have. 

A  certain  protection  of  the  rights  of  members  in  a  collective 

1  Boyer  v.  Western  Union  Tel.  Co.,  124  Fed.  246 ;  People  v.  Marcus,  185  N.Y. 
257,  77  N.E.  1073. 

»  Cal.  Pen.  Code,  sec.  679 ;  Conn.,  G.S.,  sec.  1297 ;  Mass.,  Acts  1909,  ch.  154, 
sec.  19  ;  Ohio,  Gen.  Code,  sec.  12943  ;  Okla.,  Acts  1907-1908,  ch.  513  ;  U.S., 
30  Stat.  428. 

»  Gillespie  v.  People,  188  III.  176,  58  N.E.  1007;  Coffeyv-ille  Brick,  etc.,  Co.  v. 
Perry,  69  Kans.  297,  76  Pac.  848;  State  v.  Julow,  129  Mo.  163,  31  S.W.  781 ; 
Commonwealth  v.  Clark,  14  Pa.  Super.  Ct.  435;  State  v.  Kreutzberg,  114  Wis. 
630,  90  N.W.  1098  ;  Adair  v.  United  States,  208  U.S.  161,  28  Sup.  Ct.  277. 

«  Davis  t>.  State,  30  Ohio  Wkly.  Law  Bui.  342. 


TRADE  AND  LABOR  ASSOCIATIONS  235 

sense  is  attempted  by  a  law  of  one  state,  which  forbids  the  giving 
of  bribes  to  officers  or  agents  of  unions  for  the  purpose  of  secur- 
ing the  adjustment  of  labor  disputes,  or  of  influencing  them  in 
the  performance  of  their  duties  as  representatives  of  such  or- 
ganizations.^ 

Section  114.  Collective  Agreements.  —  The  principles  govern- 
ing contracts  of  employment  considered  in  Chapter  I  are  those 
that  apply  in  cases  of  contracts  between  individuals  ;  but  in  the 
development  of  organizations  in  industry,  there  has  arisen  a 
form  of  contract  in  which  the  parties  are  a  labor  organization  or 
its  representative  on  the  one  hand,  and  an  employer  or  the  rep- 
resentative of  a  group  of  employers  on  the  other.  These 
contracts  concern  themselves  with  wages,  hours  of  labor,  clas- 
sification of  employees,  and,  in  fact,  with  all  the  conditions  of 
employment.  They  may  be  said  generally  to  attempt  to  provide 
for  their  own  enforcement,  by  provisions  for  arbitration,  the 
deposit  of  a  forfeit,  or  otherwise  without  appeal  to  law.  The 
legal  construction  of  such  contracts  has  not,  therefore,  been 
much  discussed  by  the  courts,  and  the  cases  available  involve 
such  a  variety  of  elements  that  a  general  rule  can  hardly  be 
deduced.  The  situation  is  further  complicated  by  an  apparent 
conflict  of  opinion  as  to  the  validity  of  such  contracts  as  passed 
upon  by  the  courts  of  different  states.  While  their  validity, 
per  se,  would  seem  to  follow  from  the  general  law  allowing  free- 
dom of  contract  and  of  association,  the  extent  to  which  the 
parties  thereto  can  go  will  be  limited  by  the  rule  that  no  one  can 
barter  away  his  own  freedom,  or  form  monopolistic  combina- 
tions or  other  contracts  in  violation  of  public  policy ;  and  an 
agreement  involving  enforcement  by  means  of  fines  and  penal- 

«  N.Y.,  C.L.,  ch.  40.  sec.  380. 


236  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

ties  of  a  coercive  nature  will  be  considered  as  vitiated  thereby.* 
Where  there  is  no  attempt  to  coerce  third  parties,  however,  such 
parties  can  make  no  effective  attack  on  a  collective  agreement, 
even  though  its  observance  by  the  parties  to  it  may  reduce  the 
opportunities  of  the  third  party  for  securing  employment,^ 
since  the  freedom  of  contract  enjoyed  by  individuals  extends 
to  them  in  conjunction  with  others  for  the  formation  of  united 
contracts  on  matters  of  common  interest.^  Where  the  question 
lies  between  a  labor  union  and  one  of  its  members  who  is  un- 
willing to  abide  by  the  terms  of  his  agreement,  the  rules  and 
procedure  of  the  union  offer  the  natural  and  usually  the  only 
means  of  redress ;  though,  as  already  stated,  these  rules  must  not 
interfere  with  the  legal  rights  either  of  the  employee  *  or  of  the 
employer.^  But  it  must  be  a  party  in  interest  who  raises  the 
question  of  the  legality  of  the  contract ;  for  though  it  may  be 
invalid  and  unenforceable  as  overstepping  rules  of  public  policy, 
it  requires  more  than  a  mere  negative  showing  of  such  facts  to 
lead  to  the  intervention  of  the  courts,  since  on  such  a  showing  the 
law  takes  the  contract  as  it  finds  it,  and  as  it  finds  it  leaves  it.' 
In  a  recent  case  an  injunction  issued  against  the  newly  elected 
officers  of  a  labor  organization  who  sought  to  incite  workmen  to 
strike  in  violation  of  an  existing  contract,  thus  implying  that 

>  Delaware,  L.  &  W.  R.  Co.  v.  Switchmen's  Union,  158  Fed.  541 ;  Hopkins  v. 
Oxley  Stave  Co.,  83  Fed.  912,  28  CCA.  99 ;  Hilton  v.  Eckersley,  6  Ell.  &  Bl. 
47 ;  Boutwell  v.  Marr,  71  Vt.  1,  42  Atl.  607 ;  Martell  v.  White,  185  Mass.  255,  69 
N.E.  1085. 

«  National  Fireproofing  Co.  v.  Mason  Builders,  145  Fed.  260,  169  Fed.  259 
(C.C.A.). 

»  National  Protective  Ass'n.  r.  Cumming,  170  N.Y.  315.  63  N.E.  369. 

«  Brennan  v.  Hatters,  73  N.J.L.  729,  65  Atl.  165. 

»  Willcut  <fe  Sons  Co.  v.  Bricklayers,  200  Mass.  110,  85  N.E.  897. 

*  National  Fireproofing  Co.  r.  Mason  Builders,  supra,  citing  Brown  v.  Jacob*' 
Pharmacy  Co.,  115  Ga.  433.  41  S.E.  563. 


TRADE  AND  LABOR  ASSOCIATIONS  237 

the  contract  could  be  fairly  assumed  to  secure  to  the  employer 
valuable  rights,  even  though  no  injunction  would  issue  to  pre- 
vent the  workmen  themselves  from  striking.^  In  another  case, 
in  which  an  employer  was  seeking  to  prevent  a  strike  and  offered 
in  evidence  a  contract  with  the  union,  it  was  held  that  union 
oflficials  could  not  be  enjoined  from  counseling  with  the  members 
of  their  unions,  where  no  strike  could  take  place  without  the 
favorable  vote  of  the  members  themselves ;  ^  and  in  subsequent 
hearings  in  the  Barnes  case,  the  court  refused  to  prevent  union 
officials  from  counseling  with  or  paying  benefits  to  striking  em- 
ployees.^ The  validity  of  a  contract  between  an  employer  and 
a  union  was  upheld  by  a  divided  bench  where  the  point  involved 
was  the  collection  of  a  note  given  by  the  employer  to  guarantee 
his  observance  of  the  terms  of  the  agreement ;  *  and  a  federal 
court  directed  the  receiver  of  a  railroad  under  its  care  to  make 
an  "appropriate  contract"  with  an  organization  of  railroad 
employees  on  the  subject  of  the  conditions  of  employment  of  its 
members.* 

On  the  ground  that  the  contract  did  not  call  for  the  employ- 
ment of  particular  individuals,  but  only  of  individuals  of  a  cer- 
tain class,  it  has  been  held  that  the  acts  of  employers  and  em- 
ployees in  terminating  individual  contracts  could  not  be  reviewed 
under  the  terms  of  a  collective  contract.*     It  has  also  been  held 

>  Barnes  &  Co.  v.  Berry,  156  Fed.  72. 

*  Delaware.  L.  &  W.  R.  Co.  r.  Switchmen's  Union,  supra. 
» 157  Fed.  883,  169  Fed.  225,  94  CCA.  501. 

*  Jacobs  p.  Cohen,  183  N.Y.  287,  76  N.E.  5  ("a  regrettable  decision,"  41  Am. 
L.  Rev.  203). 

*  Waterhouse  v.  Comer,  55  Fed.  149  (but  condemning  and  eliminating  one 
rule). 

*  Bumetta  r.  Marceline  Coal  Co.,  180  Mo.  241,  79  S.W.  136 ;  Barnes  A  Co.  v. 
Berry,  157  Fed.  883  ;  Delaware,  L.  A  W.  R.  Co.  v.  Switchmen's  Union,  supra. 


238  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

that  such  an  agreement  is  not  adequate  to  overcome  the  specific 
provisions  of  contracts  made  directly  between  employers  and 
employees ;  ^  and  a  court  refused  to  read  into  individual  con- 
tracts with  workmen  the  provisions  of  a  contract  with  the  union 
to  which  the  men  belonged,  on  the  ground  that  the  union  was 
incompetent  to  contract  for  its  individual  members ;  ^  nor  will 
an  action  for  damages  he  against  an  unincorporated  union  as  a 
union  for  the  breach  of  a  contract  made  by  it  on  behalf  of  its 
members,  since  it  is  not  a  legal  person.  The  court  declined  to 
consider  what  would  have  been  the  result  if  the  action  had  been 
brought  against  individual  members.  It  went  so  far  as  to  say, 
however,  that  if  the  members  were  in  any  way  liable  on  the 
contracts  of  the  association,  the  liability  would  rest  on  the  doc- 
trine of  principal  and  agent  and  not  on  that  of  partnership, 
since  the  association  had  not  at  all  the  nature  of  a  business 
enterprise  and  could  not  contract  as  such. 

It  is  not  easy  to  see,  on  what  grounds  actions  could  be  brought 
against  individuals  under  a  contract  the  terms  of  which  were  not 
allowed  to  affect  the  conditions  of  their  employment.  The 
better  view  seems  to  be  that  of  a  case  in  which  it  was  said  that 
in  so  far  as  there  was  any  real  contract  it  must  have  been  be- 
tween individual  members  of  the  respective  organizations.^  In 
this  case  the  formal  parties  to  the  contract  were  the  represen- 
tatives of  certain  employers'  and  employees'  associations  respec- 
tively, and  the  court  held  that  while  the  resultant  contract  was 
in  form  between  two  international  associations,  there  were  in 
reahty  separate  contracts  between  employers   and  employees 

»  Langmade  v.  Olean  Brewing  Co.,  121  N.Y.S.  388. 

*  Burnetta  v.  Marceline  Coal  Co.,  supra. 

»  Barnes  &  Co.  v.  Berry,  169  Fed.  225,  94  CCA.  501. 


TRADE  AND  LABOR  ASSOCIATIONS  239 

who  were  members  of  the  various  organizations;  "or  rather, 
that  the  provisions  of  the  contract,  upon  its  being  entered  into, 
became  terms  of  the  separate  contracts  of  employment  between 
each  member  of  the  Typothetaj  [the  employer's  association]  and 
the  members  of  the  union  in  his  employ." 

The  legal  value  of  an  agreement  of  the  sort  under  considera- 
tion is  clearly  very  doubtful.  The  moral  effect  has  been  widely 
recognized,  but  the  incorporation  of  penalty  provisions  adds 
little  to  that  effect,  since  an  inquiry  into  all  the  provisions  and 
tendencies  of  such  agreements  has  generally  resulted  in  disclosing 
conditions  with  which  the  courts  refuse  to  meddle;  while  the 
general  rule  of  the  unenforceability  of  labor  contracts  and  the 
inequality  of  status  that  would  result  from  binding  an  employer 
when  the  employee  is  free  to  abandon  service,  are  obstacles  to 
the  granting  of  legal  or  equitable  validity  thereto.  While  an 
employer  is  at  liberty  to  discharge  a  workman  objectionable  to 
the  union  without  incurring  liability  to  him  for  the  act,  the 
existence  of  such  an  agreement  is  no  defense  for  the  union  in 
cases  where  it  procures  such  discharge  with  no  other  justification 
than  it  purposed  to  procure  his  discharge  as  a  punishment  for 
his  failure  to  make  application  for  membership  in  the  union.' 
If,  however,  he  incurs  suspension  from  his  union,  the  agreement 
therewith  for  the  exclusive  employment  of  members  in  good 
standing  is  sufficient  warrant  for  his  discharge,^  and  the  associa- 
tion would  not  be  in  any  way  liable  in  damages  for  procuring  his 
discharge  if  his  suspension  was  effected  with  proper  regard  for 
the  by-laws  of  the  association.  It  is  not  easy  to  conceive  that 
a  court  of  equity  would  order  an  employer  who  had  contracted 

«  Berry  p.  Donovan,  188  Mass.  353,  74  N.E.  fi03 ;  Curran  r.  Galen,  152  N.Y. 
33,  46  N.E.  297.  »  Scarano  v.  Lemlcin,  121  N.Y.S.  351. 


240  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

to  employ  only  union  men,  to  discharge  a  nonunion  workman 
whom  he  had  retained  in  violation  of  the  terms  of  his  agreement, 
or  to  hire  union  workmen  furnished  him  by  union  officials, 
regardless  of  his  opinion  of  their  fitness.  It  would  follow  that  a 
court  of  law  would  not  enforce  the  payment  of  a  note  or  other 
forfeiture  conditioned  on  the  observance  of  a  contract  of  this 
sort ;  and  the  payment  of  a  fine  by  an  employer  to  settle  a  dis- 
pute following  the  alleged  violation  of  a  collective  agreement  is 
not  conclusive,  since  the  employer  may  be  able  to  show  to  the 
jury  in  an  action  to  recover  the  fine  that  there  was  coercion  to 
procure  its  payment,  so  that  recovery  thereof  may  be  allowed.^ 

The  steps  that  the  parties  themselves  may  take  or  the  extent 
to  which  they  may  go  in  the  way  of  strikes,  lockouts,  and  boy- 
cotts for  the  procurement  or  enforcement  of  collective  agree- 
ments will  receive  consideration  in  other  sections. 

Section  115.  The  Closed  Shop.  —  The  collective  agreement 
usually  embodies  a  so-called  closed  shop  provision,  restricting 
employment  to  members  of  the  contracting  labor  organizations 
or  of  bodies  afl&liated  therewith,  or  to  persons  not  "objection- 
able to  the  union  from  any  cause."  ^  If  it  relates  to  employment 
on  public  works,  such  provision  is  condemned  with  practical 
uniformity,  as  making  an  unlawful  discrimination,  tending  to 
create  monopoly  by  the  restriction  of  competition,  and  tending 
also  to  increase  the  cost  of  the  work,  which  is  against  public 
policy  and  not  within  the  power  of  the  contracting  board  or 

1  Burke  v.  Fay,  128  Mo.  App.  690,  107  S.W.  408,  citing  Carew  v.  Rutherford, 
106  Mass.  1,  8  Am.  Rep.  287 ;  March  v.  Bricklayers'  etc..  Union,  79  Conn.  7,  63 
Atl.  291.  The  opposite  view  was  taken  in  Jacobs  v.  Cohen,  supra;  see  also 
Simers  v.  Halpern,  114  N.Y.  Supp.  163,  in  which  it  was  held  that  such  a  note  was 
not  void  for  want  of  consideration. 

>  Berry  v.  Donovan,  188  Mass.  353,  74  N.E.  603. 


TRADE  AND  LABOR  ASSOCIATIONS  241 

officials.^  There  is  a  distinction  allowed  between  public  and 
private  employment  in  this  respect,  as  was  brought  out  in  the 
Toole  case,  cited  above,  in  which  the  court  said  that  "a  contract 
between  private  persons  may  provide  that  it  shall  cease  to  be 
obligatory  or  be  void  if  either  party  to  it  shall  employ  nonunion 
men,  and  the  law  will  permit  the  provisions  to  have  full  force  ; 
and  so  with  an  inhibition  against  the  hiring  of  union  men  and 
with  all  other  stipulations  which  are  not  impossible  of  perform- 
ance, not  immoral,  nor  contrary  to  public  policy."  On  this 
view  a  contract  with  an  employer  to  retain  in  his  service  only 
members  of  the  union  which  is  party  to  the  agreement  is  valid, 
so  that  no  injunction  against  the  discharge  of  nonunion  mem- 
bers would  lie ;  ^  and  indeed  to  hold  otherwise  would  be  to  claim 
for  the  courts  the  power  of  supervising  the  conduct  of  employers 

«  State  V.  Toole,  26  Mont.  22.  66  Pac.  496 ;  Adams  v.  Brennan,  177  111.  194, 52 
N.E.  314;  Lewis  B.  Board,  139  Mich.  306,  102  N.W.  756;  Atlanta  v.  Stein,  111 
Ga.  789,  36  S.E.  932  ;  Marshall  &  Bruce  Co.  v.  Nashville,  109  Teun.  495,  71  S.W. 
815.  In  this  connecton  may  be  noted  the  ruling  of  the  U.S.  Civil  Service 
Commission  and  the  declarations  of  President  Roosevelt  in  a  case  involving  the 
rights  of  employees  in  the  Government  Printing  Office.  William  A.  Miller,  a 
bookbinder,  was  expelled  from  his  union,  and,  upon  notice  to  the  Public  Printer, 
was  discharged  from  his  employment  because  of  such  expulsion.  On  appeal 
to  the  Civil  Service  Commission,  his  reinstatement  was  requested,  since  "the 
Commission  does  not  consider  expulsion  from  a  labor  union,  being  the  action  of 
a  body  in  no  way  connected  with  the  public  service  nor  having  authority  over 
public  employees,  to  be  such  a  cause  as  will  promote  the  efficiency  of  the  public 
service."  President  Roosevelt  thereupon  ordered  reinstatement,  saying, 
"There  is  no  objection  to  the  employees  of  the  Government  Printing  Office 
constituting  themselves  into  a  union  if  they  so  desire  ;  but  no  rules  or  resolutions 
of  that  union  can  bo  permitted  to  override  the  laws  of  the  United  States ;"  and 
again,  "In  the  employment  and  dismissal  of  men  in  the  government  service,  I 
can  no  more  recognize  the  fact  that  a  man  does  or  does  not  belong  to  a  union  as 
being  for  or  against  him  than  I  can  recognize  the  fact  that  he  is  a  Protestant  or 
Catholic,  a  Jew  or  a  Gentile,  as  being  for  or  against  him."  Twentieth  Rep., 
U.S.C.S.  Com.,  pp.  147-150. 

»  MUls  r.  Printing  Co.,  91  N.Y.  Supp.  185,  99  App.  Div.  605. 
B 


242  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

and  employees  in  the  matter  of  the  termination  and  formation 
of  contracts  of  employment  to  an  extent  entirely  unwarranted 
(sec.  3.);  and  the  agreement  can  hardly  be  said  to  have  had 
weight  in  influencing  such  a  decision.  A  different  case  was 
presented  where  local  associations  of  employers  and  employees 
had  entered  into  an  agreement  for  the  employment  of  members 
of  the  employees'  association  only,  and  a  discharged  workman 
sued  to  recover  damages  for  the  loss  of  employment.^  It  was 
held  that  such  a  contract  could  not  be  supported,  that  it  was  no 
defense  to  the  union  that  it  was  party  thereto,  and  that  the 
discharged  employee  could  recover  damages  from  the  union  for 
interfering  to  procure  his  discharge.  The  distinction  was  made 
by  the  judge  in  the  Mills  case  between  that  case  and  the  Curran 
case  that  the  latter  was  an  attempt  to  legalize  a  plan  of  com- 
pelling workmen  not  in  affiliation  with  the  organization  to  join 
it  at  the  peril  of  being  deprived  of  their  employment.  It  was 
said  that  there  is  a  manifest  discrimination,  well  recognized, 
between  a  combination  of  workmen  to  secure  the  exclusive  em- 
ployment of  its  members  by  a  refusal  to  work  with  none  other, 
and  a  combination  whose  primary  object  is  to  procure  the  dis- 
charge of  an  outsider  and  his  deprivation  of  all  employment. 
In  the  first  case  the  action  of  the  combination  is  primarily  for 
the  betterment  of  its  members ;  in  the  second  case  such  action 
is  primarily  "to  impoverish  and  crush  another  "  by  making  it 
impossible  for  him  to  work  there,  or,  so  far  as  may  be  possible, 
anywhere.  The  difference  is  that  which  exists  between  a  com- 
bination for  the  welfare  of  self  and  one  for  the  persecution  of 
another.  The  one  may  necessarily  but  incidentally  require  the 
discharge  of  an  outsider;   the  primary  purpose  of  the  other  is 

1  Curran  v.  Galen,  152  N.Y.  33,  46  N.E.  297. 


TRADE  AND  LABOR  ASSOCIATIONS  243 

such  discharge  and  his  exclusion  from  labor  in  his  calling.  This 
reasoning  follows  closely  that  of  a  concurring  opinion  in  a  case  ^ 
in  which  the  method  of  procuring  the  closed  shop  was  by  strikes 
rather  than  by  means  of  contracts  with  employers,  and  which 
sustained  the  right  of  the  union  to  declare  strikes  in  order  to 
secure  such  an  end,  so  that  the  discharged  workman  had  no 
redress.  The  legality  of  closed  shop  contracts  has  been  upheld 
in  other  cases  on  the  ground  in  part  that  but  a  single  employer 
was  involved,  so  that  workmen  were  not  compelled  to  join  the 
union  in  order  to  procure  employment  in  the  locality,^  also  that 
the  contract  was  not  procured  by  duress,  nor  was  there  pressure 
exerted  "so  imperative  as  to  amount  to  compulsion"  to  procure 
the  discharge  of  nonunion  workmen.^ 

While  the  attitude  of  the  courts  of  New  York  may  therefore 
be  said  to  be  favorable  to  the  closed  shop  agreement,  those  of 
Illinois  seem  to  present  a  contrary  view.  Thus  where  a  strike 
was  ordered  for  the  purpose  of  coercing  an  employer  into  signing 
such  a  contract,  it  was  said  that  the  attempt  to  thus  procure 
the  agreement  was  unlawful  as  violative  of  the  clear  legal  right 
of  the  company  and  unjust  and  oppressive  as  to  those  who  did 
not  belong  to  labor  organizations.^  Such  agreements  are  also 
said  to  be  unlawful  as  tending  to  monopoly  by  excluding  work- 

J  National  Prot.  Ass'n.  v.  Cumming,  170  N.Y.  315,  334.  63  N.E.  369.  The 
present  writer  has  been  entirely  unable  to  discover  the  distinctions  pointed  out 
by  the  judges  between  the  Cumming  case  and  the  Curran  case.  It  was  in  evi- 
dence in  the  Cumming  case  that  the  agent  of  the  union  declared  that  if  he  ever 
found  the  plaintiff  or  his  associates  on  a  job  in  New  York  or  vicinity,  a  strike 
would  be  called  by  order  of  the  board  of  delegates ;  that  he  would  not  allow 
them  to  work  on  any  job  except  a  small,  cheap  job,  and  by  his  permission.  See 
dissenting  opinion  concurred  in  by  three  judges,  at  p.  336  of  170  N.Y.,  p.  375  of 
63  N.E.  « Jacobs  v.  Cohen,  183  N.Y.  287,  76  N.E.  6. 

»  Kissam  v.  Printing  Co..  199  N.Y.  70.  92  N.E.  214. 

«  O'Brien  v.  People,  216  111.  354,  75  N.E.  108. 


244  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

men  not  members  of  the  union.^  And  in  the  Massachusetts 
courts  damages  have  been  allowed  as  against  members  of  a  labor 
organization  procuring  the  discharge,  under  a  closed  shop  agree- 
ment, of  a  workman  not  belonging  to  the  union  which  was  party 
to  the  contract.^  The  ground  on  which  such  agreements  are 
upheld  is  that  they  are  beneficial  to  the  employer,  doing  away 
with  disputes ;  that  they  represent  the  expression  of  the  interests 
of  the  workmen  seeking  employment  on  terms  and  under  con- 
ditions agreed  upon  among  themselves ;  that  the  acts  of  work- 
men in  securing  and  enforcing  such  agreements  are  nothing  more 
than  trade  competition,  the  purpose  being  to  benefit  the  mem- 
bers of  the  union  by  securing  them  employment ;  and  that  if 
such  is  the  purpose  of  the  agreement  and  the  acts  thereunder, 
and  not  primarily  to  injure  others,  the  agreement  is  defensible 
as  a  competitive  measure,  even  though  others  are  incidentally 
deprived  of  employment  by  reason  thereof.^  In  the  case, 
Berry  v.  Donovan,  cited  above,  it  was  held,  however,  that  an 
interference  by  a  combination  of  persons  to  obtain  the  discharge 
of  a  workman  because  he  refuses  to  comply  with  their  wishes, 
for  their  advantage,  in  some  matter  in  which  he  has  a  right  to 
act  independently,  is  not  competition.  "The  necessity  that  the 
plaintiff  should  join  this  association  is  not  so  great,  nor  is  its 
relation  to  the  rights  of  the  defendants,  as  compared  with  the 
right  of  the  plaintiff  to  be  free  from  molestation,  such  as  to 
bring  the  acts  of  the  defendants  under  the  shelter  of  trade 
competition."  * 

*  Christensen  v.  People,  114  111.  App.  40;  Folsom  v.  Lewis,  (Mass.)  94  N.E. 
316.  *  Berry  v.  Donovan,  188  Mass.  353,  74  N.E.  603. 

*  National  Prot.  Ass'n.  v.  Gumming,  supra;   Kissam  v.  Printing  Co.,  supra; 
National  Fireproofing  Co.  v.  Mason  Builders'  Ass'n.,  169  Fed.  259  (C.C.A.). 

'Plant  V.  Woods,  176  Mass.  492,  57  N.E.  1011 ;    see  also  Folsom  v.  Lewis, 
supra. 


TRADE  AND  LABOR  ASSOCIATIONS  245 

Under  the  rules  laid  down  in  the  New  York  cases,  an  associa- 
tion of  employers,  covering  practically  the  whole  of  a  line  of 
trade  in  a  locality,  cannot  direct  its  members  to  employ  only 
the  members  of  a  designated  labor  organization,  though  an 
individual  employer  might  have  such  an  arrangement ;  but  such 
a  restriction  of  employment  would  result  from  the  action  of  a 
large  and  controlling  organization  as  is  contrary  to  public 
policy.^  It  follows  that  a  bond  given  by  a  member  of  the 
association  to  secure  compliance  with  its  orders  is  not  breached 
by  a  refusal  to  comply  with  such  a  direction,  nor  can  any  pen- 
alty be  collected  on  account  of  such  refusal. 

Obviously  a  difficult  question  to  determine,  under  the  view 
holding  closed  shop  contracts  legal,  will  be  that  of  discovering 
when  the  agreement  is  merely  a  matter  of  trade  competition, 
devoid  of  malice,  and  not  tending  to  monopoly ;  and  when  it  is 
so  extensive  as  to  fall  under  the  ban  of  monopoly,  or  so  expres- 
sive of  bad  motive  as  to  be  condemned  as  malicious.  No  agree- 
ment can  be  viewed  as  standing  on  the  same  footing  as  the  re- 
fusal of  an  individual  to  deal  with  another,  since  there  is  the 
original  necessity  of  numbers  to  originate  such  an  agreement; 
and  the  enforcement  of  it  is  by  way  of  penalty  on  both  members 
and  employers,  thus  restricting  their  free  choice,  so  that  the 
arrangement  falls  under  the  condemnation  of  all  undertakings 
by  which  it  is  sought  to  compel  third  parties  to  purchase  the 
privilege  of  engaging  in  business  by  concessions  to  unauthorized 
and  unofficial  organizations.^     The   supreme  court    of    Con- 


»  McCord  V.  Thompson-Starrett  Co.,  (N.Y.)  92  N.E.  1090,  afBrniiiig  113  N.Y. 
Supp.  385,  129  App.  Div.  130. 

»  Union  P.  R.  Co.  v.  Ruef,  120  Fed.  102  ;  Aikena  v.  Wisconsin,  195  U.S.  194,  25 
Sup.  Ct.  3  ;  Reynolds  v.  Davis.  198  Mass.  294,  84  N.E.  457. 


246  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

necticut  ^  must,  however,  be  cited  as  countenancing  such  agree- 
ments, in  addition  to  the  citations  already  given. 

Whichever  view  is  taken  of  the  agreements  as  such,  where  it 
appears  that  they  were  procured  by  threats  and  coercion  their 
validity  would  be  open  at  least  to  serious  question,  and  if  coer- 
cion were  proved,  they  would  be  voidable.^  Furthermore,  the 
courts  will  not  be  concluded  by  the  fact  that  the  original  agree- 
ment was  voluntary,  if  its  observance  is  found  to  be  procured 
by  measures  amounting  to  coercion  or  intimidation  by  reason 
of  which  the  subsequent  freedom  of  choice  is  wrongfully  and 
illegally  restrained.^ 

The  effect  of  the  closed  shop  agreement  on  the  liability  of 
employers  for  injuries  to  employees  whose  selection  and  employ- 
ment is  regulated  by  such  agreements  has  already  been  noticed 
(sec.  96). 

Section  116.  The  Union  Label.  —  One  of  the  methods  by 
which  labor  organizations  undertake  to  strengthen  their  influ- 
ence and  to  emphasize  the  benefits  of  organization  is  by  the 
adoption  of  a  mark  or  label,  somewhat  of  the  nature  of  a  trade- 
mark, the  privilege  of  the  use  of  which  is  restricted  to  manu- 
facturers who  comply  with  the  conditions  fixed  by  the  union 
adopting  the  label.  The  question  of  the  propriety  of  classing 
such  labels  with  trade-marks  turns  on  the  definition  of  the 
latter  term.  If  a  trade-mark  is  assumed  to  be  the  mark  of  a 
trader  or  manufacturer,  implying  that  the  article  bearing  it  was 
made  or  sold  by  him,  then  the  rules  of  law  applicable  to  trade- 

»  state  V.  Stockford,  77  Conn.  227,  68  All.  769. 

»  Doremus  v.  Hennessy,  176  111.  608,  52  N.E.  924  ;  10  Am.  &  Eng.  Enc,  2  Ed., 
p.  321. 

»  Martell  v.  White,  186  Maes.  255, 69  N.E.  1085 ;  BoutweU  v.  Marr,  71  Vt.  1,  42 
Atl.  607. 


TRADE  AND  LABOR  ASSOCIATIONS  247 

marks  do  not  extend  to  union  labels ;  and  on  this  view  it  has 
been  held  that  such  labels  cannot  be  protected,  since  they  do 
not  indicate  any  individual  manufacturer,  nor  "point  distinctly 
to  the  origin  or  ownership  of  the  article  to  which  applied."  '  In 
another  case  it  was  said  that  the  plaintiff  could  defend  no  special 
title  to  a  label,  since  it  was  not  a  trader,  and  furthermore  because 
the  words  of  the  label,  "opposed  to  inferior  rat-shop,  cooly, 
prison,  or  filthy  tenement  house  workmanship,"  showed  a  pur- 
pose to  stigmatize  all  workmen  of  the  craft  not  members  of  the 
union,  so  that  equity  would  offer  no  redress  for  the  alleged 
grievances.^  On  the  ground  that  the  right  to  a  trade-mark  can 
not  exist  apart  from  a  business,  and  that  such  a  mark  is  not 
itself  property,  the  officers  and  members  of  a  union  were  held 
not  to  be  entitled  to  an  injunction  restraining  the  unauthorized 
use  of  the  label  of  the  union.' 

The  Supreme  Court  of  the  United  States  defines  a  trade-mark 
as  a  device  to  indicate  "origin  or  ownership,"  and  this  would 
appear  to  be  broad  enough  to  cover  the  case  of  the  label  of  a 
union.  The  subject  has  been  made  a  matter  of  legislative  ac- 
tion in  nearly  all  of  the  states  of  the  Union,  provision  being  made 
for  the  registration  and  protection  of  the  label  adopted,  and  in 
many  cases  the  word, "  trade-mark  "  is  so  defined  as  to  include  the 
union  label."*  Apart  from  statute,  it  has  been  held  that  while 
such  a  label  is  not  a  trade-mark,  and  no  one  has  a  vendible 
interest  therein,  but  only  a  contingent  right  to  use  it,  equity 
will  nevertheless  protect  a  complainant  against  fraudulent  use 

>  Cigar  Makers  v.  Conhaim,  40  Minn.  243,  41  N.W.  943. 
«  McVey  v.  Brcndd,  144  Pa.  St.  235,  22  Atl.  912. 
»  Wecncr  v.  Brayton,  152  Mass.  101,  25  N.E.  46. 

«  Conn.,  G.S..  sees.  4907-4012  ;  Ind.,  A.S..  scca.  8693-8703  ;  Mass.,  R.L.,  ch.  72, 
Bees.  7-14;   N.Y.,  C.L.,  Ch.  13,  bccb.  15,  16. 


248  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

by  which  the  public  is  deceived  and  the  rightful  users  are  made 
to  suffer  pecuniary  loss.'  The  statutes  on  the  subject  have 
been  generally  held  to  be  constitutional. ^  In  the  Illinois  and 
Indiana  cases  cited,  the  same  label  was  under  consideration  as 
that  condemned  in  the  courts  of  Pennsylvania ; '  but  it  was  said 
in  these  cases  that  the  language  was  not  an  attack,  but  was  de- 
fensive only.  In  some  cases  the  question  of  class  legislation 
was  raised,  but  the  courts  ruled  that  the  act  was  neither  local, 
private,  nor  discriminatory,  but  merely  allowed  a  legitimate 
statement  as  to  the  class  of  workmanship  employed.  Descrip- 
tive words  are  no  proper  part  of  a  trade-mark,  but  their  use 
will  not  invalidate  an  otherwise  appropriate  mark.^  In  opposi- 
tion to  the  point  made  by  the  Massachusetts  court  in  the  case 
of  Weener  v.  Brayton,  supra,  it  has  been  held  that  since  such  a 
label  is  a  symbol  of  the  reputation  of  the  goods  on  which  it  is 
placed,  it  acquires  the  character  of  property,  and  is  therefore  a 
valid  subject  of  legislation.^  An  international  label  was  held 
not  to  be  within  the  protection  of  a  state  law  unless  it  was  af- 
firmatively shown  that  it  could  properly  be  registered  there- 
under ;  ®  and  the  form  of  any  label  for  which  the  protection  of 
the  law  is  sought  must  conform  to  the  provisions  of  the  statute.' 

'  Carson  v.  Ury,  39  Fed.  777.  See  also  Hetterman  v.  Powers,  102  Ky.  133,  43 
S.W.  180. 

»  Schmalz  v.  Wooley,  57  N.J.  Eq.  303,  41  Atl.  939  ;  Tracy  v.  Banker,  170  Mass. 
266,  49  N.E.  308 ;  People  v.  Fisher,  50  Hun.  552,  3  N.Y.  Supp.  786 ;  Perkins  v. 
Heert,  158  N.Y.  306,  53  N.E.  18 ;  State  v.  Bishop,  128  Mo.  373,  31  S.W.  9 ;  Cohn 
V.  People,  149  111.  486,  37  N.E.  60 ;  State  v.  Hagan,  6  Ind.  App.  167,  33  N.E.  223  ; 
State  V.  Montgomery,  57  Wash.  192,  106  Pac.  771. 

'  McVey  v.  Brendel,  supra. 

*  People  V.  Fisher,  supra. 
'  State  V.  Bishop,  supra. 

•  State  Ji.  Hagan,  supra. 

">  Lawlor  v.  Merritt  &  Son,  78  Conn.  630,  63  Atl.  639. 


TRADE  AND  LABOR  ASSOCIATIONS  249 

The  use  of  a  label  not  identical  but  misleading  in  appearance 
on  a  casual  examination  is  a  violation  of  a  statute  prohibiting 
the  use  of  counterfeits  or  colorable  imitations/  and  it  is  as  much 
an  offense  to  use  a  genuine  label  without  authority  as  to  use  an 
imitation  thereof.^  A  statute  prohibiting  the  use  of  a  label 
without  authority,  or  the  use  of  a  counterfeit  label,  was  held  not 
to  make  knowledge  an  ingredient  of  the  offense,  the  act  itself 
making  the  user  liable ;  ^  though  it  has  been  held  that  guilty 
knowledge  must  be  shown,  since  nothing  will  be  taken  by  way 
of  intendment  in  the  enforcement  of  a  penal  statute.'*  The 
statutes  frequently  penalize  only  the  known  or  wailful  violation 
of  the  law,  and  where  such  is  not  shown,  no  penalty  will  attach, 
and  circumstances  may  even  warrant  the  remission  of  costs  in 
the  issue  of  an  injunction  against  further  use  of  the  label.*  A 
provision  in  a  statute  that  the  penalty  to  be  adjudged  against 
a  violator  of  the  law  may  be  fixed  by  the  complainant  associa- 
tion and  by  it  recovered  in  an  action  for  debt  amounts  to  usurpa- 
tion of  the  judicial  function,  depriving  the  defendant  of  property 
without  due  process  of  law,  and  is  unconstitutional.® 

Under  this  head  may  be  mentioned  the  statutes  of  a  few 
states  ^  which  require  the  union  label  to  be  placed  on  public 
printing.  No  decision  of  a  court  seems  to  have  been  made  as 
to  the  constitutionality  of  such  statutes,  though  they  would 
obviously  fall  under  the  same  condemnation  as  have  ordinances 

»  Myrup  r.  Friedman.  112  N.Y.  Supp.  1138. 

*  Tracy  v.  Banker,  supra. 

»  Bucla  r.  Newman,  31  N.Y.  Supp.  449.  10  Misc.  460. 

*  State  V.  Bishop,  supra. 

»  United  Garment  Workers  v.  Davis,  (N.J.  Eq.)  74  Atl.  306. 

•Cigar  Makers'  International  Union  r.  GoldborK,  72  N.J.L.  214,  61  Atl.  457. 

»  Mont..  R.C..  sec.  254  ;   Ncv.,  PL.,  sec.  1515. 


250  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

of  cities  to  the  same  effect.^  Such  laws  are  condemned  as  class 
legislation,  tending  to  the  promotion  of  monopolies,  and  leading 
to  unwarrantable  expenditure  of  the  public  funds,  even  where 
the  law  does  not  require  the  award  of  contracts  to  the  lowest 
responsible  bidder. 

The  right  to  wear  the  badge  of  a  labor  organization  or  to  carry 
a  union  card  is  restricted  to  actual  members  by  the  statutes  of 
a  number  of  states.^  On  principle,  such  statutes  would  seem 
to  fall  fairly  within  the  rule  as  to  the  right  of  the  union  label  to 
protection,  and  to  be  valid  as  preventing  fraud.  It  has  been 
held,  however  that  a  statute  forbidding  the  wearing  of  the 
badge  of  any  organization  except  as  permitted  or  provided  by 
the  constitution  and  by-laws  of  the  same  ^  was  unconstitutional 
as  delegated  legislation,  since  the  right  was  made  dependent  on 
other  than  a  pubhc  law ;  the  act  was  also  held  void  as  discrim- 
inatory, in  violation  of  the  provisions  of  the  fourteenth  amend- 
ment of  the  federal  Constitution.^ 

Section  117.  Restrictive  Combinations.  Antitrust  Laws.  — 
Combinations  of  workmen  may  be  condemned,  or  at  least  set 
outside  of  the  protection  of  the  law,  on  the  ground  that  they  are 
in  restraint  of  trade.  Their  purpose  to  restrict  employment  to 
their  own  numbers  or  those  in  affiliation  with  them  operates  to 
exclude  nonmembers  from  employment ;  and  the  courts  will 
not  enforce  by  injunction  or  otherwise  the  contracts  of  mem- 
bers to  continue  as  such  or  to  observe  the  rules  of  the  associa- 

>  Holden  v.  City  of  Alton,  179  El.  318,  53  N.E.  556  ;  Marshall  &  Bruce  Co.  v. 
NashvUle,  109  Tenn.  495,  71  S.W.815;  Atlanta  «.  Stein,  111  Ga.  789,  36  S.E.  832  ; 
Miller  v.  City  of  Des  Moines,  143  Iowa  409,  122  N.W.  226. 

«  Conn.,  Acts  1907,  ch.  113  ;  Ga.,  Acts  1899,  p.  79  ;  Mass.,  Acts  1909,  oh.  514, 
sees.  31,  32 ;   Minn.,  R.L.,  sec.  5053,  etc. 

» Mont.,  Acts  1907,  ch.  18. 

*  State  V.  HoUand,  37  Mont.  393,  96  Pac.  719. 


TRADE  AND  LABOR  ASSOCIATIONS  251 

tion,  or  in  any  way  guarantee  the  status  of  the  organization  or 
of  a  member  (unless  property  rights  are  involved),  on  the  ground 
that  such  judicial  sanction  of  the  regulations  would  be  an  un- 
justifiable interference  with  the  freedom  of  contract  and  of 
trade.^  If  an  association  is  essentially  for  the  purpose  of  re- 
striction of  output  and  of  employment,  and  actively  operates 
to  impair  the  freedom  of  employers  as  well  as  restricting  its 
own  members,  it  may  be  disbanded  as  illegal i^  or  an  injunction 
may  issue  against  a  combination  to  further  a  strike  where  the 
object  of  the  strike  is  to  enforce  a  closed-shop  agreement.' 

In  some  cases  the  language  used  in  the  consideration  of  com- 
binations of  workmen  indicates  a  purpose  to  apply  the  same 
rules  to  them  as  to  business  agreements ;  *  though  in  others  a 
distinction  is  sharply  drawn,  the  right  of  laborers  and  profes- 
sional men  to  combine  to  fix  a  price  on  their  services  being  held 
lawful  both  at  common  law  and  under  statutes  generally.^     It 

»  O'Brien  v.  Musical  M.  P.  &  B.  U.,  64  N.J.  Eq.  525.  54  Atl.  150. 

»  Kealey  v.  Faulkner,  18  Ohio  S.  &  C.  P.  Dec.  498. 

'  Reynolds  v.  Davis,  198  Mass.  294,  84  N.E.  457 ;  Goldfield  Consol.  Mines  Co. 
V.  Goldfield  Miners'  Union,  159  Fed.  500. 

*  Lohse  Patent  Door  Co.  v.  Fuelle,  215  Mo.  421,114  S.W.  997. 

»  Rohlf  V.  Kasemeier,  140  Iowa  182,  118  N.W.  276.  It  has  been  said  recently 
that  "so  far  as  economic  principles  are  concerned,  and  so  far  as  considerations  of 
fairness  and  justice  are  involved,  there  is  not  a  word  to  be  said  in  favor  of  any 
scheme  of  legislation  which  condemns  combinations  of  capital  and  at  the  same 
time  encourages  combinations  of  labor."  (Eddy  on  Combinations,  sec.  896.) 
Admitting  the  possibility  of  abuse  of  both  classes  of  combinations,  the  author 
quoted  assumes  the  necessity  of  regulation,  both  groups  being  important  to  the 
welfare  of  society  and  the  one  demanding  the  other  as  its  correlative.  Another 
writer  (Coglcy,  Strikes  and  Lockouts)  reaches  the  same  conclusion,  though  ho 
says  that  the  employer  undoubtedly  hius  the  advantage  because  he  has  the  most 
means,  which  is  merely  "the  good  fortune  of  the  one  party  and  the  hard  luck  of  the 
other,  and  is  not  the  fault  of  the  law."  The  actual  legislative  attitude  has  had 
some  attention,  both  as  regards  labor  organizations  in  particular  (sec.  1 10),  and  in 
relation  to  employed  persons  in  general  (sees.  .3  and  4)  ;    and  while  the  courts 


252  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

appears  to  be  the  rule,  however,  that  where  the  question  is 
one  simply  of  the  rights  of  employers  to  agree  on  the  terms  of 
the  labor  contract  and  the  personnel  of  their  employees,  there 
is  little  if  any  difference  between  their  rights  and  those  of  work- 
men. 

It  may  be  broadly  stated  that  "all  combinations  in  restraint 
of  trade  are  contrary  to  public  poHcy  and  illegal  unless  they  are 
for  the  reasonable  protection,  by  reasonable  and  lawful  means, 
of  persons  dealing  legally  with  some  subject  matter  of  contract."  ^ 
Each  case  must  turn  on  its  conformity  or  nonconformity  with 
the  terms  of  the  above  rule,  and  protestations  of  innocent  pur- 
pose or  of  simple  obedience  to  the  rules  and  obligations  of  the 
association  must  be  weighed  against  the  actual  effects  of  the 
acts  done  and  the  reasonably  anticipated  consequences  of  rules 
of  the  nature  pleaded.  A  combination  of  laborers  to  prevent 
the  introduction  of  labor-saving  machinery,^  or  to  secure  the 
employment  of  members  of  the  union  only'  (though  many  of 
the  recent  cases  on  this  point  seem  to  turn  on  the  question  of 
methods  and  the  consequences  to  nonunion  workmen,  and  hold 
the  mere  purpose  of  securing  the  employment  of  fellow-members 
lawful),  or  to  compel  all  employees  of  several  employers  to  join 
a  particular  union,^  or  to  prevent  the  employment  of  others  to 

have  not  uniformly  recognized  the  constitutionality  of  dififerentiating  statutes, 
there  is  at  least  room  for  effort  to  adjust  the  unequal  economic  conditions  ad- 
nutted  by  the  author  last  quoted  and  recognized  in  many  judicial  opinions,  on 
the  ground  that  it  is  better  to  adapt  legal  and  economic  mles  and  doctrines  to 
existing  facts  than  to  insist  on  the  doctrines  and  ignore  the  facts. 
»  Gatzow  V.  Buening,  106  Wis.  1,  81  N.W.  1003. 

*  Oxley  Stave  Co.  v.  Coopers'  International  Union,  72  Fed.  695. 

»  Elder  v.  Whitesides,  72  Fed.  724 ;  Gatzow  v.  Buening,  supra ;  Curran  v. 
Galen,  152  N.Y.  33,  46  N.E.  297. 

*  McCord  V.  Thompson-Starrett  Co.,  113  N.Y.  Supp.  385. 


TRADE  AND  LABOR  ASSOCIATIONS  253 

take  the  place  of  workmen  out  on  strike,^  or  a  combination  to 
procure  employees  under  contract  to  quit  their  employment,^ 
or,  in  general,  a  combination  coming  within  the  definition  given 
below  (sec.  118)  of  a  conspiracy,  is  unlawful. 

Legislation  directed  to  the  operation  of  business  agreements, 
commonly  known  as  antitrust  legislation,  is  found  in  many 
states  and  on  the  federal  statute  books.  As  noted  in  sec. 
Ill,  some  of  these  laws  expressly  exempt  labor  agreements  from 
their  application.  A  law  prohibiting  agreements  to  regulate 
the  price  of  any  commodity  was  held  not  to  apply  to  labor,  the 
court  rejecting  the  view  that  labor  can  be  classed  as  a  com- 
modity, and  holding  further  that  combinations  to  advance  wages 
are  lawful.^  The  exception  as  to  labor  combinations  in  the 
antitrust  law  of  Nebraska  was  declared  unconstitutional  by  a 
federal  court ;  *  this  view  was  disapproved  by  the  supreme 
court  of  the  state,  however,  the  law  being  held  by  it  to  be 
valid  as  enacted.^  An  Illinois  statute  that  amended  the  anti- 
trust law  of  that  state  by  excepting  wage  agreements  therefrom 
was  held  by  the  supreme  court  of  the  state  to  be  unconstitu- 
tional,' on  the  ground  that  the  law  was  discriminatory,  citing 
a  similar  conclusion  of  the  Supreme  Court  of  the  United  States 
as  to  a  law  of  the  same  sort  making  exceptions  of  a  different 
nature.'' 

An  association  whose  by-laws  restrict  competition  in  bidding 

>  Union  P.  R.  Co.  v.  Ruef,  120  Fed.  102. 

«  Arthur  v.  Oakes.  63  Fed.  310,  11  CCA.  209. 

»  Rohlf  V.  Kasemeier,  supra. 

*  Niagara  Fire  Insurance  Co.  v.  Cornell,  110  Fed.  816. 
'  Cleland  v.  Anderson,  66  Ncbr.  252,  92  N.W.  306. 

•  People  ex  rel.  Akin  r.  Butler  St.  Foundry  Co.,  159  111.  249,  66  N.E.  363.  8e« 
also  Eddy  on  Combinations,  sees.  911,  912. 

1  Connolly  v.  Pipe  Co.,  184  U.S.  640,  22  Sup.  Ct.  431. 


254  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

for  work  and  require  purchases  of  supplies  to  be  made  only  from 
dealers  who  conform  to  the  rules  of  the  association  is  in  restraint 
of  trade  and  violates  a  law  prohibiting  contracts  and  combina- 
tions to  prevent  or  destroy  full  and  free  competition  in  produc- 
tion.^ Any  member  of  a  combination,  if  acting  singly  and 
individually,  could  lawfully  refuse  to  deal  with  any  person  or 
persons  not  meeting  the  conditions  set  by  him  for  his  customers 
or  patrons,  and  no  law  which  would  infringe  upon  his  freedom 
in  that  regard  would  be  valid;  but  an  act  that  is  harmless 
when  done  by  one  may  become  a  public  wrong  through  concert 
of  action,  and  may  be  prohibited  or  punished  as  a  conspiracy 
if  it  is  injurious  to  the  pubhc  or  to  individuals  against  whom  it 
is  directed.^  The  fact  that  an  agreement  entered  into  by  sev- 
eral strips  them  of  their  own  freedom  of  action  as  individuals 
was  mentioned  in  the  case  last  cited  as  a  further  warrant  for 
holding  the  combination  to  be  one  in  restraint  of  trade  within 
the  purview  of  a  statute  prohibiting  combinations  of  that  na- 
ture ;  the  statute  was  also  held  to  be  constitutional. 

The  federal  antitrust  act^  declares  illegal  "every  contract, 
combination  in  the  form  of  trust  or  otherwise,  or  conspiracy,  in 
restraint  of  trade  or  commerce,"  interstate  or  foreign.  This 
act  was  held  in  an  early  case  to  apply  to  combinations  of  laborers 
no  less  than  to  those  of  capitalists,  and  the  fact  that  the  origin 
and  general  purposes  of  a  combination  were  innocent  and  lawful 
in  no  wise  lessens  the  illegality  of  acts  that  offend  against  the 
provisions  of  the  statute.'*    In  this  case  an  effort  to  secure  the 

1  Bailey  v.  Ass'n.  of  Master  Plumbers,  103  Tenn.  99,  62  S.W.  853. 

«  Grenada  Lumber  Co.  v.  Mississippi,  217  U.S.  433,  30  Sup.  Ct.  635 ;  citing 
Callan  v.  Wilson,  127  U.S.  655,  8  Sup.  Ct.  1301. 

»  Act  of  July  2,  1890,  26  Stat.  209,  Comp.  Stat.,  p.  3200. 

*  United  States  v.  Workingmen's  Amal.  CouncU,  54  Fed.  994 ;  Affirmed 
(C.C.A.),  57  Fed.  86. 


TRADE  AND  LABOR  ASSOCIATIONS  255 

employment  of  none  but  union  men  by  the  interruption  of 
commerce  by  violent  means  was  held  to  be  a  restraint  of  trade 
within  the  meaning  of  the  act;  so  also  of  a  boycott  against  a 
connecting  railway  line,  and  a  refusal  to  handle  its  cars  until  it 
should  come  to  terms  with  the  organization  ; '  and  an  injunc- 
tion will  properly  lie  against  officers  of  an  organization  who 
incite  strikes  in  furtherance  of  a  purpose  condemned  by  the 
act.^  The  subject  received  an  extensive  discussion  in  its  bear- 
ing on  the  subject  of  combinations  of  labor  in  the  case  just  cited. 
This  case  was  carried  to  the  Supreme  Court  and  there  affirmed,' 
though  not  on  the  grounds  of  a  violation  of  the  antitrust  law, 
but  on  the  broader  ground  of  the  control  of  the  national  gov- 
ernment over  the  transportation  of  the  mails. 

It  was  stated  in  the  opinion  in  the  above  case  that  there  was 
no  dissent  from  the  opinion  of  the  court  below  as  to  the  scope 
of  the  act,  but  this  declaration  was  not  understood  in  a  later 
case  in  an  inferior  court  as  upholding  the  applicability  of  the 
law  to  a  case  in  which  efforts  to  unionize  a  factory  involved  the 
boycotting  of  the  product  in  various  states  to  which  shipments 
were  customarily  made,  with  the  result  that  such  shipments 
were  largely  reduced.  The  court  in  this  instance  held  that  the 
only  points  of  interference  were  the  diminished  sales  in  each 
locality  and  the  reduction  of  manufacture  locally,  neither  of 
which  were  matters  classifiable  as  interstate  commerce  and 
subject  to  federal  control.''  The  Supreme  Court  of  the  United 
States,  however,  considered  the  question  on  appeal,^  and  held 

1  Waterhouso  r.  Comer,  55  Fed.  149. 
«  United  States  v.  Debs.  64  Fed.  724. 

•  In  re  Debs.  158  U.S.  564.  15  Sup.  Ct.  900. 

*  Loewc  V.  Lawlor,  148  Fed.  924. 

» Same  case,  208  U.S.  274,  28  Sup.  Ct.  301. 


256  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

that  the  combined  acts  had  for  their  purpose  an  interference 
with  interstate  commerce,  that  labor  unions  are  in  no  wise 
exempt  from  the  strictures  placed  by  the  statute  on  combina- 
tions in  restraint  of  trade,  and  that  a  boycotting  of  goods  sold 
chiefly  in  other  states  than  that  of  manufacture,  for  the  purpose 
of  coercing  the  manufacturer  into  an  agreement  with  the  union, 
was  repugnant  to  the  statute. 


CHAPTER  XII 

LABOR   DISPUTES 

Section  118.  Conspiracies. —  The  old  common-law  doctrine 
of  conspiracy,  which  was  by  statute  made  to  cover  all  labor 
combinations  in  Great  Britain  until  within  the  past  century,  is 
frequently  invoked  to  meet  cases  in  which  combinations  are 
formed  that  are  regarded  as  unduly  interfering  with  business 
or  property  interests.  Of  practically  the  same  nature  and  effect 
are  certain  prohibited  combinations,  not  designated  as  con- 
spiracies, for  the  purpose  of  "willfully  or  maliciously  injuring 
another  in  reputation,  trade,  business,  or  profession,  by  any 
means  whatever."  ^  It  has  been  repeatedly  declared  that  what 
one  may  lawfully  do  alone,  many'  may  do  in  combination ;  ^ 
though  the  better  view  is  against  the  correctness  of  this  asser- 
tion, unless  properly  qualified  ; '  but  in  general  the  fact  of  com- 
bination does  not  of  itself  suggest  illegality. 

A  conspiracy,  however,  is  essentially  illegal,  being  most 
commonly  defined  as  a  combination  of  two  or  more  persons  to 

>  Wis.,  A.S.  sec.  4466a. 

»Bohn  Mfg.  Co.  v.  Hollis,  54  Minn.  223.  55  N.W.  119;  Lindsay  r.  Montana 
Federation  of  Labor,  37  Mont.  264,  96  Pac.  127 ;  National  Protective  Ass'n.  v. 
Gumming,  170  N.Y.  315,  63  N.E.  369;  Cooke,  Combinations,  Monopolies, 
and  Labor  Unions,  sec.  16. 

» Aikens  v.  Wisconsin,  195  U.S.  194,  25  Sup.  Ct.  3 ;  Arthur  v.  Oakcs,  63  Fed. 
310,   11  CCA.    209;    Buck's   Stove  &  Range   Co.  v.    American   Federation   of 
Labor.  35  Wash.  L.  Rep.  797,  70  Alb.  L..I.  8 ;   Pickett  r.  WaLsh.  192  Mass.  572,  78 
N.E.  753  ;  Lohse  Patent  Door  Co.  v.  FucUe,  215  Mo.  421,  114  S.W.  997. 
8  257 


258  LAW  OF   THE   EMPLOYMENT   OP  LABOR 

perform  an  illegal  act,  or  effect  an  illegal  purpose,  or  to  accom- 
plish some  purpose  not  in  itself  criminal  or  unlawful  by  criminal 
or  unlawful  means ;  and  a  conspiracy  to  commit  an  offense  may 
be  more  severely  punished  than  the  offense  itself,  under  pro- 
vision of  statute.^  The  matter  of  definition  and  penalty  may 
be  regulated  by  statute,  and  several  states  have  provisions  de- 
claring that  labor  agreements  are  not  conspiracies ;  ^  though 
such  laws  do  not  legaUze  the  class  of  conduct  embraced  in  the 
definition  given  above,  and  where  there  is  a  malicious  or  cor- 
rupt agreement  to  deprive  another  of  his  liberty  or  property, 
the  law  has  been  violated,  regardless  of  these  statutes ;  ^  nor 
does  the  fact  that  a  state  has  a  statute  on  the  subject  of  conspir- 
acy prevent  common  law  actions  in  cases  not  falling  within  the 
purview  of  the  statute.* 

Conspiracies  are  classed  as  civil  and  criminal,  the  former 
giving  rise  to  liability  in  damages  to  the  person  injured  thereby, 
and  the  latter  being  punishable  by  the  state  as  for  any  other 
offense.  In  criminal  conspiracies  the  offense  consists  in  the 
combination,  and  punishment  will  follow  the  proof  of  the  con- 
spiracy without  regard  to  the  attainment  of  its  ends,  since  the 
law  regards  the  act  of  unlawful  combination  and  confederacy 
as  dangerous  in  itself  to  the  peace  and  welfare  of  society;  ^  while 
in  civil  conspiracies  some  damage  to  the  complaining  party 
must  be  shown.     Any  party  thereto  is  liable  for  the  conse- 

1  Clune  V.  United  States,  159  U.S.  590,  16  Sup.  Ct.  125. 

»  Cal.,  Sims'  Pen.  Code,  p.  581 ;  Md.,  P.  G.  L.,  Art.  27,  sec.  33  ;  Minn.,  R.L., 
sec.  4868 ;  N.Y.,  C.  L.,  ch.  40,  sec.  582,  etc. 

»  State  V.  Glidden,  55  Conn.  46,  8  Atl.  890 ;  Lucke  v.  Clothing  Cutters,  77  Md. 
896,  26  .\tl.  505  ;  Arthur  v.  Oakea,  supra. 

*  State  V.  Dalton,  134  Mo.  App.  517,  114  S.W.  1132. 

'United  States  v.  Caasidy,  67  Fed.  698;  Clune  v.  United  States,  supra; 
Arthur  v.  Oakes,  supra. 


LABOR  DISPUTES  259 

quences  of  unlawful  combinations,  though  he  personally  may 
not  have  participated  in  the  performance  of  the  acts  leading  up 
to  them ;  ^  or  even  though  no  act  whatever  was  done,  if  the 
conspiracy  was  criminal.^  The  fact  that  a  civil  recovery  has 
been  had  is  no  bar  to  criminal  proceedings,  and  vice  versa.^ 

The  statutes  of  a  number  of  states  require  the  performance  of 
an  overt  act  to  establish  criminal  liability,  but  the  performance 
of  that  act  may  still  entail  hability  upon  all,^  and  the  act  itself 
need  not  be  criminal  if  the  conspiracy  was  so  and  the  act  shows 
a  purpose  of  carrying  it  out.^ 

No  conspiracy  can  exist  without  more  parties  than  one,  so 
that  a  judgment  for  damages  against  one  party  to  an  alleged 
conspiracy,  the  other  parties  being  cleared  of  the  charge,  is 
self-contradictory.®  One  need  not  be  an  original  conspirator 
to  become  liable  as  such  if  he  makes  himself  party  to  a  con- 
spiracy with  knowledge  of  the  character  of  its  acts  and  purposes 
or  of  their  reasonable  tendency,^  and  the  innocent  and  lawful 
act  of  combining  for  mutual  benefit  passes  into  indictable  con- 
spiracy when  threats,  intimidation,  and  violence  are  adopted  as 
means  of  enforcing  the  demands  of  the  associates  on  employers 
or  third  persons.  Inasmuch  as  any  conspiracy  charged  will 
usually  operate  in  one  or  more  of  the  methods  commonly  em- 
ployed by  combinations  in  the  prosecution  of  their  ends,  the 
subject  will  recur  under  the  several  topics,  as  strikes,  boycotts, 
picketing,  blacklisting,  etc. 

'  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  730. 

'  Arthur  v.  Oakes,  supra;  State  v.  Buchanan,  5  Har.  &  J.  (Md.)  317. 

«  State  V.  Dal  ton,  supra;  Underhill  v.  Murphy,  117  Ky.  640,  78  S.W.  4S2. 

•  U.S.,  R.S.,  sec.  5440.     See  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  supra. 

•  United  States  v.  Gordon,  22  Fed.  250. 

•  St.  Louis  S.  W.  R.  Co.  v.  Thompson,  102  Tex.  89,  1 13  S.W.  144. 

'  Conkcy  v.  Russell,  111  Fed.  417  ;  ex  parte  Richards,  117  Fed.  658;  Goldfield 
Consol.  Mines  Co.  v.  Miners'  Union,  15'J  Fed.  500. 


260  LAW  OF  THE   EMPLOYMENT   OF  LABOR 

The  statutes  declaring  that  labor  agreements  as  to  the  con- 
ditions of  employment  are  not  conspiracies  may  contain  the 
specific  provision  that  the  statute  is  to  be  construed  as  applying 
only  to  the  combinations  in  question,  and  do  not  authorize  the 
use  of  force  or  violence  or  threats  thereof ;  *  or  they  may  merely 
state  that  the  orderly  and  peaceable  assembling  and  coopera- 
tion of  workmen  for  securing  or  maintaining  desired  conditions 
is  not  a  conspiracy ;  ^  nor  is  a  refusal  to  work,  following  such  an 
agreement,  with  the  adoption  and  use  of  means  to  make  the 
agreement  effective.' 

While  these  statutes,  therefore,  have  the  obvious  intent  of 
declaring  such  agreements  lawful,  they  do  not  permit  any  vio- 
lent or  coercive  action,  and  if  they  attempted  to  do  so,  they 
would  be  unconstitutional  and  void  as  putting  certain  persons 
above  and  beyond  a  salutary  law  that  governs  all  others ;  *  and 
while  they  prevent  the  prosecution  as  conspirators  of  those  in 
combination,  they  do  not  take  away  the  right  of  any  individual 
injured  by  the  combination  to  sue  the  responsible  parties  to 
recover  damages/  The  statute  may  itself  provide  (as  in  the 
Pennsylvania  law  cited  above)  that  it  does  not  prevent  the 
prosecution  and  punishment,  under  any  other  law  than  that  of 
conspiracy,  of  persons  who,  by  force,  threats,  or  menace,  hinder 
any  one  from  working  as  he  may  desire ;  it  would  seem,  how- 
ever, that  such  a  provision  is  superfluous,  since  the  use  of  the 
means  indicated  would  doubtless  take  the  agreement  out  from 
under  the  protection  of  the  statute. 

>  Cal.,  Pen.  Code,  p.  581 ;  Colo.,  A.S.,  sec.  1295. 
»  Minn.,  R.L.,  sec.  4868;  N.  Dak.,  R.C.,  sec.  8770. 

•  N.J.,  G.S.,  p.  2344,  sec.  23 ;  Pa.,  B.  P.  Dig.,  p.  484,  sees.  72,  73. 

*  Goldberg  v.  Stablemen's  Union,  149  Cal.  429,  86  Pac.  406. 
»  Frank  v.  Herold,  63  N.J.  Eq.  443,  52  Atl.  152. 


LABOR  DISPUTES        '  261 

Of  a  somewhat  different  intent  are  laws  prohibiting  conspiracy 
against  workingmen  so  as  to  prevent  employment  by  intimidat- 
ing them,  or  by  taking  away  or  hiding  their  tools ;  or  by  coerc- 
ing or  threatening  employers  so  as  to  lead  to  their  discharge  or 
nonemployment.^  These  statutes  can  hardly  be  said  to  do 
anything  more  than  to  declare  the  common  law  in  its  apphca- 
tion  to  special  classes  of  persons. 

Section  119.  Strikes.  — A  strike  may  be  defined  as  a  pre- 
concerted cessation  of  work  by  employees.  As  it  is  usually  for 
the  purpose  of  procuring  some  concession  from  the  employer, 
the  statement  that  it  is  for  such  purpose  is  frequently  made  a 
part  of  the  definition.^  Inasmuch  as  every  man  has  a  right  to 
leave  service  at  pleasure,  with  liability  in  damages  only  if  a 
contract  is  violated,'  and  without  regard  to  reason  or  motive,* 
it  has  been  held  that  strikes  are  per  se  legal ;  *  and  while  this 
rule  may  be  accepted  as  generally  correct,  it  must  be  with  the 
understanding  that  neither  the  purpose  nor  the  method  of  the 
strike  is  unlawful.  It  is  obvious  that  if  a  strike  involved  nothing 
more  than  the  mere  cessation  of  employment,  initiated  volun- 
tarily by  the  workmen  and  so  continued,  leaving  the  employer 
and  third  persons  free  to  such  course  of  conduct  as  they  might 

>Fla.,  G.S.,  sec.  3515;  Minn.,  R.L.,  sec.  4867;  Miss..  Code,  sec.  1084; 
N.Y..  C.  L.,  ch.  40,  sec.  580. 

*  For  a  fuller  discussion  of  definitions  see  Martin,  The  Modern  Law  of  Trade 
Unions,  sec.  25. 

»  Pickett  V.  Walsh,  192  Mass.  572,  78  N.E.  753.  The  absence  of  contracts 
for  a  fixed  period  is  assumed  throughout  this  discussion,  unless  the  point  is 
specifically  mentioned. 

*  Booth  r.  Burgess,  72  N.J.  Eq.  181,  65  Atl.  231  ;  Raycroft  p.  Taintor,  68  Vt. 
219,  35  Atl.  53  ;  National  Prot.  Ass'n.  p.  Gumming.  170  N.Y.  315.  63  N.E.  369  ; 
Coolcy,  Torts,  p.  278. 

*  Union  P.  R.  Co.  v.  Ruef.  120  Fed.  102 ;  Allis-Chalmers  Co.  p.  Iron  Molders" 
Union,  150  Fed.  155  ;  National  Prot.  Ass'n.  p.  Gumming,  $upra. 


262  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

choose,  many  of  the  questions  usually  involved  would  not  arise. 
No  writ  can  issue  to  compel  former  employees  to  return  to  work, 
any  more  than  can  an  order  directing  employers  to  reinstate 
discharged  workmen.  Such  a  situation,  therefore,  need  claim 
no  further  notice. 

While  the  motive  or  purpose  of  the  act  of  a  single  individual 
quitting  work  would  not  be  made  the  subject  of  judicial  inquiry, 
the  fact  of  the  concert  of  action  of  a  number,  if  followed  by  dam- 
age, gives  room  for  inquiry  into  the  methods  by  which  such 
concert  was  procured  and  maintained,  as  well  as  into  the  ends 
in  view,^  and  if  these  are  shown  to  involve  coercion  or  intimida- 
tion, or  an  improper  interference  with  the  rights  of  individuals, 
employers  or  employees,  or  of  the  public  at  large,  the  necessity 
for  legal  or  equitable  intervention  may  appear.^  If  the  object 
is  the  benefit  of  the  members  of  the  organization,  the  fact  that 
incidental  injury  to  others  results  creates  no  liability;^  but  if 
injury  is  the  primary  motive,  and  the  possible  benefit  accruing 
to  the  members  is  remote  and  indirect,  the  strike  will  be  de- 
nounced as  illegal.*  And  even  where  an  anticipated  beneficial 
result  is  offered  as  a  defense,  the  courts  will  not  allow  the  per- 
petration of  a  wrong,  since  "no  conduct  has  such  an  absolute 
privilege  as  to  justify  all  possible  schemes  of  which  it  may  be  a 
part ;  "  ^    nor  do  statutes  legalizing  labor  combinations  and 

1  Aikens  v.  Wisconsin,  195  U.S.  194,  25  Sup.  Ct.  3. 

»  Plant  V.  Woods,  176  Mass.  492,  57  N.E.  1011 ;  Brennan  v.  Hatters,  73  N.J.  L. 
729,  65  Atl.  165 ;  Allis-Chalmers  Co.  v.  Iron  Molders'  Union,  supra. 

'  National  Fireproofing  Co.  v.  Mason  Builders'  Ass'n.,  169  Fed.  259 ;  Allis- 
Chalmers  Co.  V.  Iron  Molders'  Union,  supra;  National  Protective  Ass'n.  v. 
Gumming,  supra;  Pickett  v.  Walsh,  supra. 

*  Berry  v.  Donovan,  188  Mass.  353,  74  N.E.  603  ;  Curran  v.  Galen,  150  N.Y. 
33,  46  N.E.  297 ;  Brennan  v.  Hatters,  supra. 

'  Aikens  v.  Wisconsin,  supra;  see  also  Purvis  v.  United  Brotherhood,  214  Pa. 
St.  328,  63  Atl.  585 ;  State  v.  Stockford,  77  Conn.  227,  58  Atl.  769. 


LABOR  DISPUTES  263 

strikes  modify  this  rule  in  any  wise.^  The  fact  that  workmen 
are  in  the  employment  of  a  receiver  under  the  direction  of  a 
court  does  not  affect  their  right  to  combine  or  to  strike.^ 

Within  the  above  rule,  strikes  against  an  employer  to  secure 
an  increase  of  wages,  reduction  of  hours,  changes  of  shop  rules, 
safer  or  more  satisfactory  physical  conditions  of  employment, 
and  the  like,  are  obviously  lawful ;  and  the  employer  is  without 
remedy  even  though  the  strike  threatens  to  result,  or  actually 
results,  in  his  financial  ruin,^  or  also  in  the  inconvenience  of  the 
public*  The  strike  must,  however,  be  actually  justifiable,  and 
while  the  strikers  must  have  acted  in  good  faith  in  striking  for 
what  seemed  to  them  a  justifiable  cause,  the  courts  will  them- 
selves decide  whether  or  not  the  purpose  for  which  the  strike 
was  instituted  amounts  to  a  legal  justification  of  it.^  The  chief 
difficulty  in  cases  of  this  sort  arises  from  the  subsequent  pro- 
ceedings by  means  of  which  the  employees  seek  to  regain  employ- 
ment on  the  terms  of  their  choice.  Strictly  speaking,  em- 
ployees who  have  gone  out  on  a  strike  or  who  have  been  dis- 
charged or  locked  out  are  as  completely  severed,  in  the  eyes  of 
the  law,  from  all  relations  with  their  former  employers  as  if  the 
relation  had  never  existed,  and  the  relation  can  be  resumed 
only  by  virtue  of  a  mutual  agreement  de  novo  between  the 
parties ;  and  this  is  true  whether  the  employment  was  under 
contract  terminable  at  will,"  or  for  fixed  periods.'     If  this  rule 

'Arthur  v.  Oakes.  63  Fed.  310,  11  CCA.  209;  Currari  r.  Galen,  supra: 
Cumberland  Glass  Mfg.  Co.  v.  Bottle  Blowers,  59  N.J.  Eq.  49.  46  Ail.  208  ; 
People  ex  rel.  Gill  v.  Smith.  5  N.Y.  Cr.  Rep.  512.  affirmed.  110  N.Y.  633.  17  N.E. 
871.  '  Arthur  v.  Oakes,  supra;   In  re  Higgins.  27  Fed.  443. 

8  My  Maryland  Lodge  v.  Adt.  100  Md.  238.  59  Atl.  721. 

*  Arthur  v.  Oakes,  supra.  •  De  Minico  v.  Craig  (Ma.ss.).  94  X.E..  317. 

•  Union  P.  R.  Co.  v.  Ruef,  supra;  Iron  Molders'  Union  v.  Alli.s-Chalmera  Co., 
166  Fed.  45  (C.C.A.).  '  King  v.  W.  U.  T<1.  Co.,  84  S.C.  73,  65  S.E.  944. 


264  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

were  carried  to  its  logical  conclusion,  it  would  leave  the  employer 
free  to  continue  his  work  as  rapidly  as  new  workmen  could  be 
secured  who  were  willing  to  accept  existing  conditions.  The 
courts,  however,  generally  allow  to  the  striking  workmen  the 
privilege  of  counseling  with  and  persuading  nonstriking  or 
prospective  employees  not  to  work,  so  that  the  places  may  re- 
main unfilled  until  the  employer  grants  the  desired  concession. 
(See  sec.  120.) 

Strikes  are  frequently  undertaken  to  affect  the  personnel  of 
the  working  force,  either  by  procuring  the  discharge  of  employees 
not  in  favor  with  a  combination  of  their  fellow-workmen  or 
other  organization,  or  by  influencing  the  employer  to  reinstate  a 
discharged  workman  or  to  employ  certain  individuals  or  classes 
of  workmen.  A  strike  to  secure  the  reinstatement  of  a  dis- 
charged workman  would  seem  to  be  lawful,^  and  such  a  right 
is  in  close  relation  to  the  right  to  strike  to  procure  the  employ- 
ment of  persons  acceptable  to  a  union.  This  rests  on  the  ground 
that  members  of  a  union  may  lawfully  agree  not  to  work  with 
any  but  fellow-members,  and  may  carry  out  that  agreement  so 
long  as  they  confine  themselves  to  peaceable  means ;  ^  and  this 
is  true  even  though  the  employer  is  put  to  additional  expense 
and  inconvenience  thereby,^  or  other  workmen  deprived  of 
opportunities  of  employment ;  ^  but  a  strike  to  procure  the 
discharge  of  a  workman  merely  on  the  ground  of  personal  dis- 
like, with  no  showing  that  his  discharge  will  actually  better  the 

1  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  324 ;  National  Protective 
Asa'n.  V.  Gumming,  supra.  Per  contra,  State  v.  Donaldson,  32  N.J.  L.  151, 90  Am. 
Dec.  640.     In  none  of  these  cases  was  this  point  directly  in  issue. 

*  Mayer  v.  Journeymen  Stonecutters'  Ass'n.,  47  N.J.  Eq.  519,  20  Atl.  492. 

'  Pickett  V.  Walsh,  supra;  National  Fireproofing  Co.  v.  Mason  Builders' 
Ass'n.,  aupra. 

*  National  Protective  Ass'a.  *.  Gumming,  aupra. 


LABOR  DISPUTES  265 

condition  of  the  striking  workmen,  is  unlawful,  and  the  work- 
man interfered  with  by  such  action  is  entitled  to  damages.^ 
And  it  is  said  that  a  strike  which  has  for  its  object  not  so  much 
the  advantages  of  the  employment  of  the  members  of  the  union 
as  the  monopoly  of  the  labor  market  will  be  regarded  as  unlaw- 
ful, and  acts  in  its  furtherance  will  be  enjoined.' 

The  reasons  assigned  for  putting  such  power  into  the  hands 
of  combinations  of  employees,  obviously  affecting  the  power  of 
others  to  act  according  to  their  unrestricted  choice,  are  various. 
In  the  Pickett  case  organized  bodies  of  bricklayers  and  stone- 
setters  refused  to  work  for  building  contractors  unless  the  latter 
would  also  give  them  the  work  of  cleaning  and  pointing  the 
walls.  The  workmen  who  had  been  employed  for  this  part  of 
the  work  sought  to  prevent  the  strike  by  asking  for  an  injunc- 
tion against  any  form  of  interference  with  their  employment. 
The  employers  favored  the  request,  as  they  wished  to  divide 
the  work  for  reasons  of  economy  for  themselves  and  because 
they  claimed  that  the  pointers  did  better  work  in  their  specialty 
than  would  be  done  by  the  stonesetters  and  bricklayers.  The 
court  held  that  as  a  matter  of  trade  competition  the  latter  work- 
men were  justified  in  refusing  to  do  any  work  on  the  building 
unless  they  were  allowed  to  do  it  all ;  and  this  though  it  added 
to  the  cost  of  work  done  by  the  contractors  and  absolutely  de- 
barred the  pointers,  who  could  not  lay  brick  or  stone,  from  all 
employment,  since  such  results  are  the  natural  and  legitimate 
consequences  of  competition.  This  reasoning  would  support 
broadly  the  legality  of  strikes  undertaken  to  secure  the  employ- 
ment of  none  but  members  of  the  association  acting,  and  this 

*  De  Minico  r.  Craig,  supra. 

*  Folsom  V.  Lewia  (Mass.).  94  N.E.  316. 


266  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

is  the  attitude  of  the  courts  generally  where  the  motive  is  ap- 
parently the  benefit  of  the  membership  and  not  an  attack  on 
others  to  wantonly  or  maliciously  deprive  them  of  employment.^ 
Strikes  against  the  employment  of  persons  not  members  of 
unions  have  been  justified  also  on  the  ground  that  the  union 
members  were  warranted  in  using  such  means  to  protect  them- 
selves from  the  consequences  to  themselves  of  the  employment 
of  unskillful  or  careless  fellow-servants ;  ^  so  also  if  a  work- 
man's "habits  or  conduct  or  character  had  been  such  as  to 
render  him  an  unfit  associate  in  the  shop  for  ordinary  workmen 
of  good  character."  ^ 

Where  a  contemplated  strike  is  of  a  lawful  nature,  it  is  not 
unlawful  to  notify  employers  or  others  affected  of  the  intention 
to  strike.  In  other  words,  it  is  not  unlawful  to  foretell  or 
threaten  the  performance  of  a  lawful  act. 

Strikes  have  been  declared  unlawful  where  the  object  was  to 
enforce  the  payment  of  a  fine  imposed  on  the  employer  for  not 
giving  the  union  all  his  work,'*  since  there  is  no  privity  of  con- 
tract between  the  union  and  a  nonmember,  nor  will  any  one  be 
compelled  to  buy  his  peace  or  the  right  to  do  business  by  pay- 
ments to  nongovernmental  bodies.  It  has  also  been  held  that 
a  strike  is  not  lawful  that  has  for  its  object  the  compulsory  sub- 
mission to  a  committee  of  the  employees  of  questions  relating 
to  individual  employees  and  the  enforcement  of  the  conclusions 

1  Berry  v.  Donovan,  188  Mass.  353,  74  N.E.  603  ;  National  Protective  Ass'n. 
V.  Gumming,  supra;  Gray  v.  Building  Trades'  Gouncil,  91  Minn.  171,  97  N.W. 
663 ;   Mayer  v.  Journeymen  Stonecutters'  Ass'n.,  supra. 

'  National  Protective  Ass'n.  v.  Gumming,  supra. 

'  Berry  v.  Donovan,  supra. 

*  Garew  v.  Rutherford,  106  Mass.  1,  8  Am.  Rep.  287  ;  March  r.  Bricklayers'  & 
Plasterers'  Union,  79 Conn.  7, 63  Atl.  291 ;  Statec.  Dalton,  134  Mo.  App.  517, 114 
S.W.  1132. 


LABOR  DISPUTES  267 

of  such  committees,'  On  the  same  principle  a  strike  is  unlaw- 
ful where  the  purpose  is  to  enforce  the  payment  of  fines  levied 
on  workmen  who  do  not  belong  to  the  union  levying  such  fines.- 
Neither  can  an  employer  be  made  the  collector  of  a  fine  assessed 
by  the  union  against  a  member  employed  by  him.' 

A  strike  to  compel  workmen  to  join  a  union  by  refusing  to 
work  with  them  until  they  joined  has  been  declared  unlawi'ul, 
since,  while  actual  competition  will  not  be  restrained,  coercive 
acts  or  threats  or  wanton  and  malicious  interference  with  busi- 
ness relations  are  unlawful."*  It  has  been  held,  however,  that 
strikes  to  procure  the  discharge  of  workmen  who  refused  to  join 
a  union  are  lawful,^  and  it  is  clear  that  the  same  result  as  to 
both  the  nonunion  workman  and  the  employer  may  be  reached 
by  a  concerted  refusal  to  work  with  any  but  members  of  a  union, 
which  is  seen  to  be  legal  if  for  purposes  esteemed  beneficial  and 
not  for  purposes  of  persecution. 

It  has  been  assumed,  though  the  point  was  not  in  issue,  that 
strikes  in  violation  of  contracts  are  unlawful ;  ^  but  since  it  is 
well-settled  law  that  the  violation  of  contracts  entails  only 
liability  for  damages  resulting  therefrom  and  that  no  enforce- 

>  Reynolds  v.  Davis,  194  Mass.  294,  78  N.E.  457. 

*  People  V.  Melvin,  2  Wheeler's  Crini.  Cases,  262. 

'  Hillenbrand  v.  Building  Trades  Council,  14  Ohio  Dec.  N.P.  628 ;  Brennan  r. 
Hatters,  73  N.J.  L.  729,  65  Atl.  165. 

*  Plant  V.  Woods,  176  Ma.ss.  492,  57  N.E.  1011 ;  Erdnian  v.  Mitchell,  207  Pa. 
79,56  Atl.  327;  O'Brien  v.  People,  216  111.354,75  N.E.  108;  Curran  t.  Galen, 
152  N.Y.  33.  46  N.E.  297 ;  State  v.  Dyer,  67  Vt.  790,  32  Atl.  814 ;  Walker  r. 
Cronin,  107  Mass.  555. 

'  Gray  v.  Building  Trades'  Council,  supra;  and  se^  Coi"'"otiwealth  r.  Hunt, 
4  Mete.  (Mass.)  Ill,  38  Am.  Dec.  346.  \'- 

*  State  V.  Stockford,  77  Conn.  227.  58  Atl.  769 ;  K©>-nold9  v.  Davis,  supra  ; 
United  States  v.  Hiiggerty,  116  Fed.  510;  Goldficld  Cousol.  Mines  Co.  r.  Min- 
ers' Union,  159  Fed.  500. 


268  LAW  OF  THE   EMPLOYMENT   OF  LABOR 

ment  of  a  contract  of  personal  service  is  possible,  the  grounds 
for  such  assumptions  are  not  clear ;  and  it  has  been  specifically 
held  that  no  restraint  can  be  put  upon  striking  employees,  even 
though  by  striking  they  violate  their  contracts.^ 

Strikes  are  sometimes  undertaken  by  workmen  who  have  no 
grievance  against  their  employer  directly,  but  who  use  the 
strike  as  a  means  of  procuring  his  influence  in  the  settlement  of 
a  dispute  between  another  employer  and  his  workmen.  Such 
strikes  have  been  designated  as  sympathetic  strikes,  and  par- 
take of  the  nature  of  the  boycott.  The  purpose  is  to  obtain 
concessions  by  forcing  third  persons,  who  have  no  interest  in 
the  dispute,  to  force  employers  to  grant  the  demands  of  their 
workmen,  and  strikes  of  this  nature  have  been  held  to  be  un- 
lawful as  interfering  with  trade  freedom.^  This  view  limits  the 
right  of  organized  labor  to  use  the  strike  only  as  a  means  of 
influencing  the  persons  with  whom  a  trade  dispute  actually 
exists,  without  involving  disinterested  parties.  It  has  been 
said  that  sympathetic  strikes  are  nothing  more  than  boycotts, 
and  are  illegal  if  boycotts  are  illegal ;  ^  though  another  writer 
defends  them  on  the  ground  of  the  "solidarity  of  interest" 
between  the  employees  of  the  two  employers.^  The  consensus 
of  judicial  opinion  is,  however,  against  the  lawfulness  of  the 
sympathetic  strike. 

Certain   incidental   consequences   of  strikes   have   received 


1  A.  R.  Barnes  &  Co.  v.  Berry,  156  Fed.  72 ;  Arthur  r.  Oakes,  83  Fed.  310,  11 
CCA.  209 ;  Knudsen  v.  Benn,  123  Fed.  637 ;  Hopkins  v.  Oxley  Stave  Co.,  83 
Fed.  912,  28  CCA.  99. 

»  Kckett  D.  Walsh,  192  Mass.  672,  78  N.E.  753 ;  Reynolds  v.  Davis,  supra. 

*  Tiedeman,  State  and  Federal  Control  of  Persons  and  Property,  p.  440.  As 
to  the  legality  or  illegality  of  boycotts,  see  sec.  122. 

*  Cooke,  Combinations,  Monopolies,  and  Labor  Unions,  pp.  120,  121. 


LABOR  DISPUTES  269 

judicial  consideration,  and  some  of  these  may  be  briefly  noted. 
A  case  of  this  sort  is  where  the  employees  of  a  street  railway 
company  were  on  a  strike  and  a  passenger  sued  the  company 
to  recover  damages  for  personal  injuries  received  by  him  on  one 
of  its  cars.  The  right  of  recovery  was  denied  in  this  case,  the 
court  holding  that  there  was  no  liability  unless  the  company 
knew  or  ought  reasonably  to  anticipate  that  it  could  not  safely 
carry  passengers  by  the  exercise  of  the  utmost  care  on  its  part.' 
This  accords  with  the  ruling  that  telegraph  and  telephone 
companies  are  not  liable  for  losses  resulting  from  the  failure  to 
transmit  messages  where  such  failure  is  due  to  the  acts  of  strik- 
ing employees.'  So  a  law  penalizing  a  railroad  company  for 
failure  to  furnish  cars  on  demand  is  not  applicable  where  such 
failure  is  due  to  strikes ;  ^  and  a  strike  clause  in  a  contract  of 
service  is  a  valid  defense  in  a  suit  for  delay,  where  the  delay 
actually  results  from  a  strike ;  *  but  a  delay  caused  by  a  volun- 
tary lockout  by  the  employer  affords  no  such  defense.^ 

A  suit  by  a  property  holder  to  recover  damages  from  an  em- 
ployer for  injury  to  his  property  by  the  violent  acts  of  striking 
employees  is  without  grounds,  since  the  employees  are  in  no 
wise  acting  within  the  scope  of  their  employment  or  by  the 
authority  of  their  employer  in  the  commission  of  the  unlawful 
acts  complained  of.* 

A  workman  quitting  service,  alleging  fear  of  injury  from  strik- 

»  Fewinga  r.  Mendcnhall,  83  Minn.  237,  86  N.W.  96. 

»  Sullivan  v.  W.  U.  Tel.  Co.,  82  S.  C.  569,  64  S.  E.  752,  citing  Joneeon  Telegraph 
and  Telephone  Companies,  seca.  360,  361. 

»  Murphy  Hardward  Co.  v.  Southern  R.  Co..  160  N.C.  703,  64  S.E.  873. 

♦  The  Toronto,  168  Fed.  386. 

'  Mahoney  v.  Smith.  1 16  N.Y.  S.  1091. 

•  Shay  V.  American  Iron  &  Steel  Mfg.  Co.,  218  Pa.  172,  67  Ail.  64. 


270  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

ing  fellow- workmen  if  he  continues,  will  be  regarded  as  breaking 
the  contract  of  employment  and  liable  for  resultant  damages, 
since  the  employer  is  not  responsible  for  the  cause  of  the  breach, 
and  does  not  himself  effect  it.^  The  effect  of  such  a  breach 
on  the  employee's  right  to  recover  any  balance  of  wages  pre- 
viously earned  will  be  governed  by  the  same  rules  as  in  other 
cases  of  violated  contracts  (see  sec.  8).  It  has  been  held 
that  where  a  workman  accepted  employment  with  one  whose 
employees  had  gone  on  strike  and  had  threatened  violence  to 
any  one  taking  their  places,  the  employer's  failure  to  inform 
the  new  employee  of  the  circumstances  makes  him  liable  for  such 
injuries  as  the  workman  may  receive  as  a  result  of  thus  igno- 
rantly  accepting  employment.^  The  laws  of  a  few  states  direct 
employers  advertising  for  workmen  to  give  notice  of  strikes 
affecting  them,  if  any.^  In  one  aspect  these  laws  come  within 
the  rule  that  the  employee  should  be  informed  of  hazardous  con- 
ditions known  to  the  employer  and  not  patent  (see  sec.  68), 
though  they  may  also  express  the  same  purpose  as  the  Illinois 
statute  which  forbade  free  public  employment  offices  to  furnish 
names  of  applicants  for  employment  to  employers  whose  work- 
men were  on  strike  (see  sec.  108).  Viewing  the  enactment 
from  the  latter  standpoint,  the  Illinois  supreme  court  declared 
unconstitutional  the  statute  requiring  notice  of  labor  disputes,  on 
account  of  its  unequal  application  to  employers  and  workmen 
differently  situated,  and  to  employers  as  compared  with  other  per- 
sons making  contracts.^    A  law  of  slight  probable  validity  is  one 

1  Fisher  v.  Walsh,  102  Wis.  172,  78  N.W.  437. 

«  Holshouser  v.  Denver  Gas  &  Electric  Co.,  18  Colo.  App.  431,  72  Pac.  289. 

'111.,  R.S.,  ch.  48,  sec.  49;  Mass.,  Acts  1910,  ch.  445;  Tenn.,  Acts  1901,  eh. 
104.  Assumed  to  be  valid  in  Steinert  &  Sons  Co.  v.  Tagen,  (Mass.)  93  N.E. 
584.  *  Josma  v.  Western  Steel  Car  &  Foundry  Co.,  (111.)  94  N.E.  945. 


LABOR  DISPUTES  271 

of  Minnesota  which  forbids  employers  to  require  as  a  condition 
precedent  to  emplo}Tnent  any  statement  in  writing  as  to  the 
participation  of  apphcants  for  employment  in  any  strike.^ 

Statutes  making  municipalities  liable  for  damage  done  by 
mobs  and  riots  are  constitutional,  and  are  applicable  in  cases 
where  the  injury  is  to  the  property  of  the  former  employer  of 
the  striking  workmen  and  is  done  by  such  workmen.^ 

The  legality  of  strikes  has  been  made  the  subject  of  legis- 
lation in  a  few  states,  either  directly  or  bj^  implication.  Of  the 
latter  class  are  the  laws  declaring  that  labor  agreements  are  not 
conspiracies  (see  sec.  118) ;  and  that  it  is  not  unlawful  for  two 
or  more  persons  to  unite  or  combine  or  agree  in  peacefully  ad- 
vising or  encouraging  others  to  enter  into  combinations  in  re- 
lation to  entering  into,  leaving,  or  remaining  in  the  employment 
of  any  person  or  corporation.^  Laws  of  this  class  do  not  legal- 
ize the  commission  or  threat  of  acts  of  violence,  nor  do  they 
restrict  the  power  of  the  courts  to  enjoin  such  acts,  their  only 
effect  being  to  declare  legal  certain  combinations,  but  not  au- 
thorizing coercive  measures ; ''  and  while  declaring  the  com- 
binations not  criminal,  they  do  not  take  away  the  right  of  any 
one  injured  thereby  to  sue  for  damages.^ 

Another  group  of  laws  is  one  relating  to  strikes  of  railroad 
employees,  by  which  it  is  forbidden  to  abandon  trains  or  loco- 
motives in  the  furtherance  of  a  strike  at  any  other  than  the 

»  Minn.,  R.L.,  sec.  1823. 

» Pennsylvania  Co.  v.  City  of  Chicago,  81  Fed.  317;  Pittsburg,  C.  C.  &  St. 
L.  R.  Co.  V.  City  of  Chicago,  242  111.  178.  89  N.E.  1022. 

»  Colo.,  A.S.,  sec.  1295  ;  N.J.,  Gen.  St.,  p.  2344,  sec.  23. 

*  Pierce  v.  Stablemen's  Union,  1.50  Cal.  70,  103  Pac.  324  ;  Goldberg  v.  Same, 
149  Cal.  429,  86  Pac.  806 ;  Cumberland  Glass  Mfg.  Co.  r.  Glass  Bottle  Blowers, 
69  N.J.  Eq.  49,  46  Atl.  208 ;  Curran  t>.  Galen.  152  N.Y.  33,  46  N.E.  297. 

» Frank  v.  Herold,  63  N.J.  Eq.  443,  52  Atl.  152. 


272  LAW  OF  THE   EMPLOYMENT   OF  LABOR 

point  of  destination  or  a  division  point.'  These  laws  come 
within  the  reason  of  statutes  penalizing  the  violation  of  con- 
tracts of  employment  when  the  probable  consequence  of  the 
act  is  the  jeopardizing  of  life  or  of  valuable  property ;  ^  and 
while  no  case  is  at  hand  giving  these  statutes  an  authoritative 
construction,  they  are  probably  vaUd.^ 

Insurance  against  loss  or  injury  to  business  by  strikes  presents 
chiefly,  of  course,  the  construction  of  the  contract  under  existing 
circumstances.  The  acceptance  and  retention  of  premiums 
with  full  knowledge  of  existing  disturbed  conditions  will  bar  the 
plea  that  the  insured  party  did  not  give  notice  of  such  conditions. 
So  also  if  replies  to  inquiries  are  ambiguous  and  the  policy  is 
nevertheless  issued,  the  company  cannot  afterwards  complain 
of  such  ambiguity  in  an  effort  to  avoid  the  liability  provided 
for  in  the  policy.^ 

Section  120.  Persuasion  or  Incitement  to  Strike.  —  Although 
it  is  generally  held  that  the  act  of  a  workman  in  striking  ter- 
minates absolutely  his  contract  with  his  employer  and  leaves 
both  parties  without  any  relation  or  mutual  status  whatever,* 
the  fact  remains  that  there  exists  in  many  minds  a  recognition 
of  a  sort  of  continuing  relation  which  differentiates  striking 
workmen  in  some  degree  from  those  never  in  the  abandoned 

» lU.,  R.S.,  ch.  114,  sec.  108 ;  Kans..  G.S.,  sec.  2374  ;  N.Y.  Acts  1903,  ch.  257, 
sec.  62 ;  Pa.,  B.  P.  Dig.,  p.  633,  sec.  357. 

»  N.Y.,  Con.  L.,  ch.  40,  sec.  1910 ;  Wash.,  Acts  1909,  ch.  249,  sec.  281. 

«  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  746 ;  Arthur  v.  Oakes,  83 
Fed.  310,  11  CCA.  209. 

*  Buffalo  Forge  Co.  v.  Mutual  Security  Co.  (Conn.),  76  Atl.  995. 

'  Union  P.  R.  Co.  v.  Ruef,  120  Fed.  102  ;  Pierce  v.  Stablemen's  Union,  156  Cal. 
70,  103  Pac.  323 ;  Goldfield  Consol.  Mines  Co.  v.  Goldfield  Miners'  Union,  159 
Fed.  500 ;  Pope  Motor  Car  Co.  v.  Keegan,  150  Fed.  148 ;  Knudsen  v.  Benn,  123 
Fed.  636. 


LABOR  DISPUTES  273 

employment.  This  is  recognized  within  certain  bounds  by  the 
courts  as  well,  inasmuch  as  it  is  generally  conceded  that  strikers 
may  reason  with  other  workmen  or  possible  applicants  for  the 
vacated  positions  and  seek  to  persuade  them  not  to  remain  in 
or  accept  employment  with  their  former  employer.*  It  was 
even  said  in  a  concurring  opinion  in  a  recent  case  that,  where  a 
strike  or  a  lockout  has  for  its  purpose  the  procuring  of  more 
desirable  terms  of  employment  from  one  of  the  parties  to  a 
labor  contract,  the  act  of  striking  or  locking  out  does  not  com- 
pletely terminate  the  relationship  between  the  parties.  "  The  re- 
lationship is  an  anomalous  one,  yet  distinctive,  and  of  such  nature 
as  to  secure  to  the  parties  certain  correlative  rights  under  which 
acts  may  be  performed  that  would  assume  a  different  aspect 
if  done  by  absolute  strangers  or  in  different  circumstances." ' 

The  extent  to  which  this  rule  may  be  carried  is  difficult  to 
determine,  since,  while  it  seems  clear  that  peaceable  persuasion 
in  connection  with  a  lawful  strike  should  be  regarded  as  lawful, 
it  may  not  be  legally  carried  so  far  as  to  become  vexatious  and 
coercive,  nor  may  the  equal  rights  of  all  men  in  freely  contracting 
or  in  seeking  employment  be  ignored.  A  display  of  force,  though 
with  no  use  of  actual  violence,  is  unlawful,'  and  no  one  has  the 
right  to  obtrude  upon  others  to  impose  upon  them  arguments 
and  persuasion  to  which  they  are  unwilling  to  listen.*    Strikers 

•Iron  Molders'  Union  v.  Allis-Chalmcra  Co.,  166  Fed.  45.  91  CCA.  631; 
Karges  Furniture  Co.  v.  Amalgamated  Woodworkers'  Union,  165  Ind.  421,  71 
N.E.  877;  Wabash  R.  Co.  v.  Hannahan,  121  Fed.  563;  Everett-Waddy  Co.  p. 
Typographical  Union,  100  Va.  188,53  S.E.  273;  Jones  v.  E.  Van  Winkle  Gin  A 
Machine  Work.s,  131  Gal.  336,  62  S.E.  236. 

'  Iron  Molders'  Union  v.  Alli.s-Chalmers  Co.,  supra. 

«  O'Neil  V.  Behanna,  182  Pa.  St.  236,  37  Atl.  843. 

*  Frank  t.  Herold,  63  N.J.  Eq.  443,  52  Atl.  152 ;   Southern  R.  Co.  r.  Machin- 
ists' Local  Union,  111  Fed.  49;    O'Neill  r.  Rchanna,  supra;    Union  P.  R.  Co.  v. 
Ruef,  supra;  Goldfield  Conaol.  Mines  Co.  v.  Goldfield  Miners'  Union,  supra. 
T 


274  LAW  OF   THE   EMPLOYMENT   OF  LABOR 

may  not  go  upon  the  premises  of  the  employer  to  confer  with  his 
employees,  since  in  doing  so  without  his  permission  they  become 
trespassers.^  Intimidation  must  not  be  disguised  in  the  as- 
sumed character  of  persuasion.  Persuasion  too  emphatic  or 
too  long  and  persistently  continued  may  itself  become  a  nuisance, 
and  its  use  a  form  of  unlawful  coercion.^ 

With  the  extensive  and  freely  used  power  of  organizations  to 
influence  the  prospects  of  employment  or  of  the  formation  and 
maintenance  of  business  relations  of  every  sort,  it  must  be  ad- 
mitted that  a  simple  representation  to  the  effect  that  a  given 
course  of  conduct  is  looked  upon  with  disfavor  by  an  organiza- 
tion is  of  itself  a  potent  influence,  and  often  amounts  to  an 
interference  with  the  free  course  of  conduct  on  which  the  "prob- 
able expectancies"  of  business  rest.^  Such  interference,  there- 
fore, even  if  by  simple  persuasion,  is  not  an  absolute  right,  but 
demands  justification  for  its  exercise.  Courts  have  given  ut- 
terance to  the  statement  that  a  wrongful  motive  cannot  convert 
a  legal  act  into  an  illegal  one,*  but  the  overwhelming  consensus 
of  opinion  is  to  the  effect  that  acts  affecting  injuriously  or  in  any 
manner  interfering  with  or  embarrassing  the  course  of  employ- 
ment or  business  require  justification  in  order  to  protect  them 
from  being  actionable,  however  legal  they  may  be  merely  as 
acts.^     The  question  whether  conduct  is  actionable  necessarily 

1  Webber  v.  Barry.  66  Mich.  127,  33  N.W.  289. 

*  Otis  Steel  Co.  v.  Iron  Molders'  Union,  110  Fed.  49  ;  O'Neil  v.  Behanna,  supra. 
'  State  V.  Donaldson,  32  N.J.L.  151,  90  Am.  Dec.  640 ;   Boutwell  r.  Marr,  71 

Vt.  1,  42  Atl.  607  ;  Curran  v.  Galen,  152  N.Y.  33,  46  N.E.  297. 

*  Quinn  v.  Leathern,  85  L.T.  289 ;  J.  F.  Parkinson  Co.  v.  Building  Trades 
Council,  154  Cal.  581,  98  Pac.  1027  ;  State  v.  Van  Pelt,  136  N.C.  633,  49  S.E.  177. 

s  Aikens  v.  Wisconsin,  195  U.S.  194,  25  Sup.  Ct.  3  ;  Loewe  v.  Lawlor,  208  U.S. 
274,  28  Sup.  Ct.  301 ;  Jersey  City  Printing  Co.  v.  Cassidy.  63  N.J.  Eq.  759,  53  Atl. 
230  ;  State  v.  Stockford,  77  Conn.  227,  58  Atl.  769  ;  Reynolds  v.  Davis,  198  Mass. 


LABOR  DISPUTES  275 

calls  for  determination  on  the  merits  of  the  individual  case; 
and  "justification  may  be  found  sometimes  in  the  circumstances 
under  which  it  is  done,  irrespective  of  motive,  sometimes  in  the 
motive  alone,  and  sometimes  in  the  circumstances  and  motive 
combined."^ 

The  problem  of  determining  the  boundary  between  persuasion 
of  an  allowable  sort  and  that  which  will  be  condemned  as  co- 
ercive is  therefore  one  of  fact,  and  each  case  will  be  determined 
on  its  own  surroundings.  The  courts  will  not  decree  all  per- 
suasion an  interference,  "but  where  evidence  presents  such  a 
case  as  to  convince  the  court  that  the  employees  are  being  in- 
duced to  leave  the  employer  by  operating  upon  their  fears 
rather  than  upon  their  judgments  or  their  sympathy,  the  court 
will  be  quick  to  lend  its  strong  arm  to  his  protection."  ^ 

Officials  of  labor  organizations  who  are  not  fellow-workmen 
with  the  employees,  and  who  have  therefore  no  relation  to  the 
employers,  may  nevertheless  counsel  and  advise  with  employees 
who  are  members  of  their  organizations  as  to  the  advisability 
of  striking,  especially  where  no  strike  can  take  place  without 
the  vote  and  consent  of  the  employees  themselves ; '  and  if  the 
officials  are  themselves  authorized  by  the  union  to  call  or  declare 
strikes  in  their  discretion,  it  is  not  unlawful  for  them  to  so  act.* 

294,  84  N.E.  457 ;  Huskie  v.  Griffin,  75  N.H.  345,  74  Atl.  595  ;  Martin.  The  Mod- 
ern Law  of  Labor  Unions,  p.  47 ;  Eric,  Trade  Unions,  p.  20 ;  Pennant.  Trade 
Unions  and  Workmen,  p.  39.  This  view  is  rejected  by  Cooke,  Combinations, 
Monopolies,  and  Labor  Unions,  pp.  17-22,  though  he  cites  numerous  cases 
which,  he  says,  "seem,  generally  speaking,  to  uphold  the  view  condemned  in  the 
text."  >  Plant  r.  Woods,  176  Mass.  492.  67  N.E.  1011. 

*  Rogers  v.  Evarts,  17  N.Y.  Supp.  264. 

» A.  R.  Barnes  &  Co.  v.  Berry,  157  Fed.  883 :  Delaware.  L.  &  W.  R.  Co.  ». 
Switchmen's  Union,  158  Fed.  541  ;  Wabash  R.  Co.  v.  Hannahan,  supra. 

*  Thomas  v.  Cincinnati  N.  O.  A  T.  P.  R.  Co.,  62  Fed.  803 ;  Delaware,  L.  <k 
W.  R.  Co.  V.  Switchmen's  Union,  supra. 


276  LAW  OF  THE   EMPLOYMENT   OP   LABOR 

These  rights  do  not  extend,  however,  so  far  as  to  give  liberty  to 
incite  strikes  in  the  violation  of  contracts,  even  though  the  work- 
men might  of  themselves  lawfully  so  strike.^  Obviously,  or- 
ganizers seeking  to  extend  the  ranks  of  organized  labor  and  not  as 
yet  in  association  with  the  workmen  could  not  so  interfere,^ 
since  it  is  on  the  basis  of  the  community  of  interest  of  associated 
workmen  and  their  mutual  agreements  as  to  representation  and 
authority  that  the  acts  of  counseling  or  directing  must  rest  for 
their  justification.'  The  officers  charged  with  the  control  of 
strike  funds  may  lawfully  use  them  to  pay  the  cost  of  trans- 
portation of  workmen  away  from  the  locality  in  or  at  which  a 
strike  is  in  progress,  or  to  offer  to  pay  benefits  to  employees  as 
an  inducement  to  them  to  leave  service ;  since  "the  strike  bene- 
fit fund  is  created  by  moneys  deposited  by  the  men  with  the 
general  officers  for  the  support  of  themselves  and  families  in 
time  of  strike,  and  the  court  has  no  more  control  of  it  than  it 
would  have  over  deposits  made  by  them  in  the  banks."  *  It 
has  been  held  that  such  payments  may  be  made  to  persons  who 
are  not  members  of  the  organization  contributing  to  the  fund.^ 
Section  121.  Picketing.  —  Picketing  as  an  incident  to 
strikes  is  a  watching  or  espionage  of  the  place  of  employment  or 
the  approaches  thereto,  or  of  the  homes  or  lodging  places  of  em- 

1  A.  R.  Barnes  &  Co.  v.  Berry,  156  Fed.  72 ;  Reynolds  v.  Davis.  198  Mass. 
294,  84  N.E.  457 ;  Wabash  R.  Co.  v.  Hannahan,  supra;  Arthur  v.  Oakes,  supra; 
Jersey  City  Printing  Co.  v.  Cassidy,  supra. 

«  Hitchman  Coal  Co.  v.  Mitchell,  172  Fed.  963  ;  Flaccus  r.  Smith,  199  Pa.  St. 
128,  48  Atl.  894 ;   United  States  v.  Haggerty,  116  Fed.  510. 

»See  National  Protective  Ass'n.  v.  Cumming,  170  N.Y.  315.  63  N.E.  369; 
Pickett  V.  Walsh,  192  Mass.  572,  78  N.E.  753 ;  Iron  Molders'  Union  v.  Allis- 
Chalmers  Co.,  supra. 

*  A.  R.  Barnes  &  Co.  v.  Berry,  157  Fed.  883. 

•  Everett- Waddy  Co.  v.  Richmond  Typographical  Union,  supra;  Rogers  v. 
Evarts,  supra. 


LABOR  DISPUTES  277 

ployees  or  possible  employees,  to  procure  information  as  to  the 
progress  of  the  strike  and  as  to  any  means  to  make  it  eflfective. 
It  has  been  defined  as  a  watching  and  annoying,  and  while  the 
word  had  not  such  a  meaning  in  its  original  use,  it  is  said  that 
the  definition  has  taken  that  form  as  the  result  of  the  conduct 
of  those  engaged  in  the  work  of  picketing,  and  that  the  adoption 
of  a  term  derived  from  the  nomenclature  of  war  is  appropriate 
as  the  picket  is  an  expression  of  hostility  and  is  evidence  that  a 
state  of  war  exists.^ 

The  courts  differ  as  to  the  lawfulness  of  picketing.  Where 
it  is  in  aid  of  an  unlawful  strike,  or  is  accompanied  by  violence 
or  by  such  a  display  of  force  or  numbers  as  to  intimidate  work- 
men or  the  public,  or  to  obstruct  the  highways  or  the  approaches 
to  places  of  business  or  employment,  there  is  no  difference  of 
opinion.  An  insulting  or  menacing  attitude  may  be  no  less  in- 
timidating than  an  actual  assault,  and  a  request  may  be  coercive 
by  mere  force  of  numbers.^  The  fact  that  pickets  are  appointed 
by  an  organization  in  no  wise  relieves  them  from  personal  re- 
sponsibility for  their  conduct  toward  third  persons;  and  the 
fact  that  they  are  the  representatives  of  a  "mysterious  and 
powerful  organized  authority"  may  be  considered  in  determin- 
ing whether  or  not  the  picketing  is  intimidating  and  coercive  in 
its  nature  and  effect.^     Picketing  has  been  broadly  condemned 

»0ti3  Steel  Co.  v.  Iron  Molders*  Union,  110  Fed.  698;  Beck  v.  Teamsters' 
Protective  Union,  118  Mich.  497,  77  N.W.  13 ;  Jones  v.  E.  Van  Winkle  Gin  & 
Machine  Works.  131  Ga.  336,  62  S.E.  236. 

« Iron  Molders'  Union  v.  Allis-Chalmcrs  Co.,  166  Fed.  45,  91  CCA.  631 ; 
Vegelahn  v.  Guntner,  167  Mass.  92,  44  N.E.  1077  ;  Ideal  Mfg.  Co.  v.  Ludwig,  149 
Mich.  133,  112  N.W.  723  ;  Allis-Chalmers  Co.  p.  Iron  Molders'  Union,  150  Fed. 
155. 

'  Kargcs  Furniture  Co.  v.  Amalgamated  Woodworkers,  165  Ind.  421,  75  N.E. 
877;  Allis-Chalmers  Co.  c.  Iron  Molders'  Union,  supra;  Vcgclahn  r.  Guntner, 
tupra. 


278  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

as  illegal  on  the  ground  that  the  fact  of  its  establishment  is 
evidence  of  an  intention  to  annoy,  embarrass,  and  intimidate ; 
and  the  position  of  the  pickets,  a  few  feet  or  a  thousand  feet 
from  the  picketed  person's  place  of  business,  is  immaterial, 
since  the  whole  procedure  is  an  unwarranted  interference  with 
the  course  of  business.^  Men  may  singly  or  jointly  quit  an 
employer,  but  they  have  no  right,  either  singly  or  jointly,  in  the 
absence  of  legitimate  interests  to  protect,  to  seek  to  ruin  a  man's 
business  by  gathering  about  the  approaches  to  his  place  of  busi- 
ness, and  there  by  either  persuasion,  coercion,  or  force,  prevent 
his  patrons  and  the  public  at  large  from  dealing  with  him ;  ^ 
and  it  has  been  said  that  there  can  be  no  such  thing  as  a  peace- 
ful picketing,^  and  that  its  maintenance  is  an  injurious  inter- 
ference in  a  matter  in  which  the  pickets  had  no  rightful  concern, 
and  is  unlawful.'*  "In  its  mildest  form  it  is  a  nuisance,  and  to 
compel  a  manufacturer  to  have  the  natural  flow  of  labor  to  his 
employment  sifted  by  a  self-constituted,  antagonistic  committee, 
whose  very  presence  upon  the  highway  for  such  purpose  is  de- 
terrent, is  just  as  destructive  of  his  property  as  is  a  boycott  which 
prevents  the  sale  of  his  product."  ^ 

The  majority  of  cases  seem  to  hold,  however,  that  picketing 
is  not  of  itself  unlawful,  and  that  the  circumstances  of  each  case 
must  be  considered.  "There  must  be  taken  into  account  the 
size  of  the  guard,  the  extent  of  their  occupation  of  the  street, 

I  A.  R.  Barnes  &  Co.  v.  Chicago  Typographical  Union,  232  111.  424,  83  N.E. 
940 ;  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  323 ;  Beck  v.  Railway 
Teamsters'  Protective  Union,  supra;  Otis  Steel  Co.  v.  Iron  Molders'  Union,  sujyra. 

«  Jensen  v.  Cooks'  &  Waiters'  Union,  39  Wash.  531,  81  Pac.  1069. 

»  Atchison,  Topeka  &  Santa  Fe  R.  Co.  v.  Gee,  139  Fed.  582  ;  Union  P.  R.  Co.  r. 
Ruef,  120  Fed.  102. 

*  Knudsen  v.  Benn,  123  Fed.  636. 

» Geo.'Jonaa  Glass  Co.  v.  Glass  Bottle  Blowers,  72  N.J.  Eq.  663,  66  Atl.  953. 


LABOR  DISPUTES  279 

and  what  they  say  and  do.  Taking  every  circumstance  into 
account,  if  it  appears  that  the  purpose  of  the  picketing  is  to  in- 
terfere with  those  passing  into  or  out  of  the  works,  or  those 
wishing  to  pass  into  the  works,  by  other  than  persuasive  means, 
it  is  illegal.  If  the  design  of  the  picketing  is  to  see  who  can  be 
the  subject  of  persuasive  inducements,  such  picketing  is  legal."  ^ 
It  was  said  in  the  above  case,  however,  that  "a  permanent 
guard  in  a  public  street  in  front  of  citizens'  houses  or  a  factory, 
is  in  itself  a  nuisance" ;  and  another  court,  while  holding  that 
peaceful  picketing  is  at  least  theoretically  possible,  and  is  en- 
tirely lawful,  said  that  is  nevertheless  "very  much  of  an  illu- 
sion." 2 

From  the  distinctions  drawn  by  the  supporting  cases,  and 
from  the  fact  that  in  some  of  them  it  was  found  that  the  right  to 
picket  had  been  exercised  so  as  to  transcend  lawful  bounds,  it  is 
evident  that  the  line  between  a  picketing  that  the  courts  will 
allow  and  one  that  they  condenm  is  easily  and  frequently  trans- 
gressed in  fact.  Thus  in  the  Allis-Chalmers  case,  the  court 
suggested  the  adoption  of  a  button  by  pickets,  and  their  employ- 
ment in  limited  numbers.  It  was  found  that  they  were  used  in 
such  numbers  and  in  so  threatening  a  manner  as  to  depart  en- 
tirely from  the  purpose  of  the  court  in  making  the  suggestion, 
and  it  was  said  by  the  court  in  the  course  of  its  decision  that 
peaceful  picketing  generally  developed  into  strong,  persistent, 
and  organized  persuasion  and  social  pressure  of  every  descrip- 

»  Cumberland  Glass  Mfg.  Co.  v.  Glass  Blowers'  Ass'n.,  69  N.J.  Eq.  49,  46  Atl. 
208.  See  also  Iron  Molders'  Union  v.  Allis-Chalmcrs  Co.,  supra;  Kargcs  Furni- 
ture Co.  V.  Amalgamated  Woodworkers,  supra;  Pope  Motor  Car  Co.  r.  Keegan, 
supra;  Mills  v.  U.S.  Printing  Co.,  99  App.  Div.  G05,  91  N.Y.  Supp.  185;  Ever- 
ett-Waddy  Co.  r.  Richmond  Typographical  Union,  106  Va.  188,  53  S.E.  273. 

*  Allis-Chalmers  Co.  r.  Iron  Molders'  Union,  supra. 


280  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

tion,  making  the  condition  of  workmen  disagreeable  and  in- 
tolerable, and  that  then  "the  condition  has  passed  from  that  of 
the  peaceful  purpose  of  promoting  the  economic  ends  of  the 
union  men,  and  has  entered  the  unlawful  stage  of  malicious 
injury,  without  just  cause  or  excuse,  to  rights  just  as  important, 
and  as  fully  protected  by  the  constitution,  as  those  on  whose 
behalf  these  acts  are  committed."  The  defense  of  the  act  rests 
on  the  fact  that  "the  right  to  persuade  new  men  to  quit  or 
decline  employment  is  of  little  worth  unless  the  strikers  may 
ascertain  who  are  the  men  that  their  late  employer  has  per- 
suaded or  is  attempting  to  persuade  to  accept  employment." 
It  has  been  said  that  the  right  to  persuade  and  to  picket  should 
be  maintained,  but  with  watchfulness  on  the  part  of  the  courts 
to  determine  whether  or  not  duress  is  being  used  under  the 
guise  of  persuasion,  and  intimidating  obstruction  and  annoy- 
ance under  that  of  picketing.^  The  Illinois  supreme  court 
rejects  this  as  not  a  safe  rule,  since  "it  furnishes  no  fixed  stand- 
ard of  what  is  lawful.  Any  picket  line  must  result  in  annoy- 
ance to  both  the  employer  and  the  workman,  no  matter  what 
is  said  or  done,  and  to  say  that  the  court  is  to  determine  by  the 
degree  of  annoyance  whether  it  shall  be  stopped  or  not  would 
furnish  no  guide,  but  leave  the  question  to  the  individual  no- 
tions or  bias  of  the  particular  judge."  "^  This  is  condemning  a 
rule  of  law  because  not  of  easy  application,  and  the  view  ex- 
pressed in  connection  with  the  drawing  of  the  line  between 
persuasion  and  intimidation  will  doubtless  command  more 
general  approval ;  but  it  is  clear  from  the  number  and  weight 
of  the  opinions  against  it  that  the  right  of  picketing  is  one  of 

•  Iron  Molders'  Union  ».  Allis-Chalmers  Co.,  supra. 

•  A.  R.  Barnes  &  Co.  v.  Chicago  Typographical  Union,  supra. 


LABOR  disputes;  281 

the  more  doubtful  ones,  and  is  to  be  exercised  only  within  strict 
bounds,  where  at  all  tolerated,  if  it  is  to  avoid  prohibition. 
When  it  is  connected  with  the  boycott,  picketing  is  generally 
condemned,^  since  it  amounts  to  an  effort  to  coerce,  or  to  in- 
fluence by  other  means  than  free  argument  and  persuasion. 
Where  the  boycott  is  held  unlawful,  of  course  acts  in  further- 
ance thereof  are  unlawful. 

An  organization  of  workmen,  not  employees  of  the  company 
whose  works  are  being  picketed,  has  no  such  right  or  interest 
in  the  matter  of  ^the  maintenance  of  a  picket  as  to  warrant 
the  granting  of  an  injunction  against  the  employer  to  prevent 
his  taking  measures  against  the  maintenance  of  pickets  at  or 
about  his  plant.'  It  was  said  in  this  case  that  the  grievance, 
if  any,  was  that  of  the  pickets  themselves ;  that  the  organiza- 
tion as  an  employer  of  pickets  had  failed  to  show  any  substan- 
tial pecuniary  damage;  and  from  all  that  appeared,  a  suit  at 
law  would  afford  ample  redress  against  the  financially  responsible 
employer.  Where  a  picket  engages  in  unlawful  acts  which  are 
accepted  or  approved  by  the  labor  union,  it  becomes  respon- 
sible therefor,  and  an  injunction  will  lie  against  it  to  prevent  the 
further  maintenance  of  such  pickets.' 

Statutes  prohibiting  picketing  are  found  in  a  few  states.'' 
The  prohibitions  of  these  laws  run  against  going  near  or  loitering 
about  the  premises  where  any  lawful  business  is  carried  on,  for 

>  Geo.  Jonaa  Glass  Co.  v.  Glass  Bottle  Blowers,  supra;  My  Maryland  Lodge 
V.  Adt,  100  Md.  238,  59  Atl.  721.     And  see  the  following  section. 

>  Atkins  V.  W.  &  A.  Fletcher  Co.,  65  N.J.  Eq.  658,  55  Atl.  1074. 

•Geo.  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers,  supra;  Goldfield  Consol. 
Min.  Co.  r.  Goldfield  Miners'  Union,  159  Fed.  500;  and  see  Union  P.  R.  Co.  v. 
Rucf,  120  Fed.  102. 

«  Ala.,  Code,  sec.  6395 ;  Colo.,  Acts  1905,  ch.  79. 


282  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

the  purpose  of  influencing  or  inducing  others  not  to  have  deal- 
ings with  those  engaged  in  such  business;  or  the  picketing  of 
any  works  or  place  of  business  for  the  purpose  of  interfering 
with  or  injuring  any  lawful  business.  A  city  ordinance  prohib- 
iting picketing  for  the  purpose  of  intimidation  or  of  threaten- 
ing workmen  was  held  valid ;  ^  though  it  was  said  that  very 
serious  doubts  exist  as  to  the  validity  of  a  provision  as  to  loiter- 
ing, similar  to  those  in  the  statutes  noted  above.  The  supreme 
court  of  Missouri  declared  unconstitutional  a  city  ordinance 
which  prohibited  lounging  or  loafing  on  street  corners  or  other 
public  places,  in  a  case  in  which  the  ordinance  was  invoked  to 
procure  the  arrest  of  pickets.^ 

Section  122.  Boycotts.  —  The  boycott  has  been  defined  as 
"a  combination  to  harm  one  person  by  coercing  others  to  harm 
him";'  or  as  "an  organized  effort  to  exclude  a  person  from 
business  relations  with  others  by  persuasion,  intimidation,  and 
other  acts  which  tend  to  violence";^  or  as  "a  confederation, 
generally  secret,  of  many  persons  whose  intent  it  is  to  injure 
another  by  preventing  any  and  all  persons  from  doing  business 
with  him  through  fear  of  incurring  the  displeasure,  persecution, 
and  vengeance  of  the  conspirators";^  or,  more  briefly,  as  an 
illegal  conspiracy  in  restraint  of  trade.^  Much  turns  on  the 
definition  of  the  term,  therefore,  since  as  above  defined  the 
courts  must  of  necessity  condemn  the  boycott  as  unlawful. 

»  Ex  parte  Williams,  (Cal.)  Ill  Pac.  1035. 
»  City  of  St.  Louis  v.  doner,  210  Mo.  502,  109  S.W.  30. 

'  American  Federation  of  Labor  v.  Buck's  Stove  &  Range  Co.,  37  Wash.  L.  R. 
154. 

*  Brace  Bros.  v.  Evans,  6  Pa.  Co.  Ct.  163,  3  Ry.  &  Corp.  L.  J.  561. 

«  Crump  V.  Com.,  84  Va.  927,  2  S.E.  620 ;  Branson  v.  Industrial  Workers  of 
the  World,  30  Nev.  270,  95  Pac.  354. 

•  Walsh  V.  Aas'n.  of  Master  Plumbers,  97  Mo.  App.  280,  71  S.W.  465. 


LABOR  DISPUTES  283 

"The  law  does  not  permit  either  employer  or  employee  to  use 
force,  violence,  threats  of  force,  or  threats  of  violence,  intimi- 
dation, or  coercion."  ^ 

A  broader  definition  has  been  offered,  as  that  a  boycott  is 
"the  act  of  a  combination  of  persons  in  refusing  to  deal  or  in 
inducing  others  to  refuse  to  deal  with  a  third  person,"  *  thus 
practically  eliminating  the  distinction  between  a  boycott  and 
the  mere  act  of  refusing  to  deal,  either  singly  or  in  consultation. 
Another  definition  of  the  same  nature  is  that  it  is  "the  with- 
drawal for  a  certain  purpose  of  the  patronage  of  the  person  or 
persons  initiating  it,  and  of  as  many  others  as  he  or  they  can 
induce  to  join  them"  ;  ^  and  in  an  opinion  of  the  supreme  court 
of  New  York  it  was  said  :  "I  think  that  the  verb,  'to  boycott,' 
does  not  necessarily  signify  that  the  doers  employ  violence,  in- 
timidation, or  other  unlawful  coercive  means ;  but  that  it  may 
be  correctly  used  in  the  sense  of  the  act  of  a  combination,  in 
refusing  to  have  business  dealings  with  another  until  he  re- 
moves or  amehorates  conditions  which  are  deemed  inimical  to 
the  welfare  of  the  members  of  the  combination,  or  some  of  them, 
or  grants  concessions  which  are  deemed  to  make  for  that  pur- 
pose." *  In  the  Lindsay  case  it  was  held  that  there  is  nothing 
unlawful  in  the  act  of  union  working  men  in  withdrawing  their 
patronage  from  the  plaintiffs  or  from  any  other  concern  doing 
business  with  them,  and  that  no  fact  of  combination  will  make 
unlawful  any  act  which  an  individual  might  lawfully  do.  "In 
other  words,  the  mere  combination  of  action  is  not  an  element 

>  My  Maryland  Lodge  v.  Adt.  100  Md.  238.  59  Atl.  721. 

•  Cooke,  Combinations,  Monopolies,  and  Labor  Unions,  p.  60. 

•  E.  P.  Cheney,  4  Pol.  Sci.  Q.  274. 

•  Mills  V.  U.  S.  Printing  Co.,  91  N.Y.  Supp.  186,  99  App.  D.  606;  adopted  in 
Lindsay  v.  Montana  Fed.  of  Labor,  37  Mont.  264,  96  Pac.  127. 


284  LAW  OF  THE  EMPLOYMENT   OF  LABOR 

which  gives  character  to  the  act.  It  is  the  illegality  of  the  pur- 
pose to  be  accomplished,  or  the  illegal  means  used  in  furtherance 
of  the  purpose,  which  makes  the  act  illegal."  ^  In  this  case  the 
court  refused  to  continue  an  injunction  against  a  boycott  pros- 
ecuted largely  by  the  distribution  of  a  circular  declaring  the 
plaintiffs  (wholesale  and  retail  merchants)  unfair,  and  calling 
on  retailers  and  the  public  to  withhold  their  patronage  from 
them,  asking  them  to  do  this  "for  your  own  protection  and  the 
protection  of  organized  labor,"  The  supreme  court  of  Cali- 
fornia took  a  similar  view  in  a  case  ^  involving  efforts  to  unionize 
the  plaintiff's  business  and  the  causing  of  loss  through  the  ces- 
sation of  trade  relations  with  a  number  of  former  customers, 
leading  in  some  instances  to  the  violation  of  contracts.  It  was 
held  that  customers  were  entitled  as  a  matter  of  fair  dealing  to 
know  that  the  company  had  been  declared  unfair  so  that  they 
would  be  able  to  avoid  inconvenience  and  loss  to  themselves  by 
breaking  off  their  relations  with  the  company,  since  no  union 
workman  would  handle  material  purchased  from  it.  A  suffi- 
cient justification  for  the  acts  of  the  council,  in  so  far  as  they 
were  responsible  for  the  violation  of  the  contracts,  was  said  to 
exist  in  the  duty  of  the  union  to  so  warn  the  customers  of  the 
company.  The  situation  was  described  as  a  bringing  to  bear 
upon  the  company  the  pressure  of  loss  inflicted  by  third  persons, 
with  whom  no  controversy  existed,  by  holding  over  those  per- 
sons the  risk  of  financial  loss,  thus  compelling  them  to  act  against 
their  own  will.  Such  action  was  said  to  be  nothing  more  than 
trade  competition  in  an  effort  to  secure  the  employment  of  union 

»  Citing  Bohn  Mfg.  Co.  v.  HoUis,  64  Minn.  223,55  N.W.  119;  Nat.  Prot. 
Ass'n  V.  Cumming,  170  N.Y.  315,  63  N.E.  369. 

» J.  F.  Parkinson  Co.  v.  Building  Trades  Council,  164  Cal.  581,  98  Pac.  1027. 
See  also  State  v.  Van  Pelt,  136  N.C.  633, 49  S.E.  177. 


LABOR  DISPUTES  285 

workmen  to  the  exclusion  of  all  not  associated  with  them,  and 
on  terms  deemed  satisfactory  and  advantageous  to  the  members 
of  the  union.  Since  each  member  was  entitled  to  so  act,  all 
might  so  act  in  combination.  "It  may  be  that  the  combina- 
tion of  great  numbers  of  men,  as  of  great  amounts  of  capital, 
has  placed  in  the  hands  of  a  few  persons  an  immense  power,  and 
one  which,  in  the  interest  of  the  general  welfare,  ought  to  be 
limited  and  controlled.  But  if  there  be,  in  such  combinations, 
evils  which  should  be  redressed,  the  remedy  is  to  be  sought,  as 
to  some  extent  it  has  been  sought,  by  legislation.  If  the  con- 
ditions require  new  laws,  these  laws  should  be  made  by  the 
law-making  power,  not  by  the  courts." 

These  cases  stand  quite  clearly  marked  off  from  the  great 
body  of  decisions  on  the  point  involved,  since  the  boycott  is 
generally,  by  its  very  definition,  put  without  the  pale  of  those 
combined  activities  which  the  law  will  permit.  In  a  tolerably 
recent  case  it  was  said  that  the  distinction  between  an  ordinary 
lawful  and  peaceable  strike,  entered  upon  to  obtain  concessions 
in  the  terms  of  the  strikers'  employment,  and  a  boycott,  is  not 
a  fanciful  one.  "Boycotts,  though  unaccompanied  by  violence 
or  intimidation,  have  been  pronounced  unlawful  in  every  state 
in  the  United  States  where  the  question  has  arisen,  unless  it  be 
in  Minnesota,  and  they  are  held  to  be  unlawful  in  England;"  ^ 
and  in  a  somewhat  earlier  case  it  was  said  that  "no  case  has 
been  cited  where,  upon  a  proper  showing  of  facts,  an  unsuccess- 
ful appeal  has  been  made  to  a  court  of  chancery  to  restrain  a 

>  Thomas  v.  Cincinnati,  etc..  R.  Co.,  62  Fed.  803.  It  may  be  noted  that  in 
the  State  of  Minnesota,  boycottinR,  which  was  allowed  in  the  case  of  Bohn  Mfg. 
Co.  V.  Hollis,  54  Minn.  223, 55  N.W.  1 1 19,  was  hold  to  bo  properly  enjoined  in  the 
later  case  of  Gray  r.  Building  Trades  Council,  91  Minn.  171.  97  N.W.  663.  See 
also  Ertz  v.  Produce  Exchange.  79  Minn.  140,  81  N.W.  737. 


286  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

boycott."  ^  While  so  sweeping  a  statement  is  not  now  pos- 
sible, it  remains  true  that  boycotts  are  by  most  courts  held  un- 
lawful even  without  public  disturbance,  physical  injury,  or  direct 
threats  of  attacks  on  person  or  property  ;2  since  "the  use  of 
the  word  '  boycott '  is  itself  a  threat,  and  the  distribution  of  boy- 
cott notices  is  intended  as  a  menace,  intimidation,  and  coercion." ' 
Where  the  coercion  consisted  only  in  the  enforcement  of  fines 
on  members  of  the  association  conducting  the  boycott,  it  was 
still  held  to  be  unlawful,  since  it  was  no  less  an  unlawdful  inter- 
ference with  business  because  accomplished  by  the  enforcement 
of  coercive  fines  on  members  than  if  it  had  been  accompHshed 
by  coercive  measures  against  nonmembers  to  compel  them  to 
aid  in  the  boycott ;  and  the  fact  that  there  was  an  initial  agree- 
ment by  all  the  members  was  not  regarded  by  the  court  as  war- 
ranting a  finding  that  the  continued  withholding  of  patronage 
was  also  voluntary,  when  the  failure  to  do  so  would  have  re- 
sulted in  a  heavy  fine ;  *  the  imposition  of  fines  on  nonmembers 
is  unlawful.* 

It  is  evident  that  it  is  the  coercive  feature  of  the  boycott 
that  discredits  it  so  emphatically  in  the  great  majority  of  the 
courts.  The  mere  refusal  of  individuals  to  deal  would  not  be  a 
violation  of  law,  since  individuals  acting  independently  cannot 

1  Casey  v.  Cincinnati  Typographical  Union,  45  Fed.  135. 

»  Barr  v.  Essex  Trades  Council,  53  N.J.  Eq.  101,  30  Atl.  881 ;  March  v.  Brick- 
layers, etc.,  79  Conn.  7,  63  Atl.  291 ;  Shine  v.  Fox  Bros.  Mfg.  Co.,  156  Fed.  367, 86 
CCA.  311 ;  Purvis  v.  Carpenters  &  Joiners,  214  Pa.  St.  348,  63  Atl.  585. 

'  Brace  Bros.  v.  Evans,  supra ;  Beck  v.  Railway  Teamsters'  Protective  Union, 
118  Mich.  497,  77  N.W.  13  ;  Casey  v.  Cin.  Typ.  Union,  supra,  etc. 

*  Boutwell  r.  Marr,  71  Vt.  1,  42  Atl.  607 ;  Martell  r.  White,  185  Mass.  256,69 
N.E.  1085. 

»  Purington  c.  Hinchcliff,  219  111.  159,  76  N.E.  47 ;  Burke  v.  Fay,  128  Mo.  App. 
690, 107  S.W.  408 ;  United  States  t>.  Raish,  163  Fed.  911. 


LABOR  DISPUTES  287 

conspire  nor  can  they  intimidate  the  public  acting  alone.^  "It 
has  been  decided,  however,  that  while  such  action  would  not 
be  unlawful  by  an  individual,  a  combination  and  a  conspiracy 
to  accomplish  the  purpose  would  be  an  illegal  act."  ^  In  the 
Hopkins  case  it  was  said  that  the  definition  of  a  boycott  was 
not  essential,  since  the  evident  purpose  was,  even  if  without 
violence,  to  so  act  by  concert,  force  of  numbers,  and  exciting 
the  fears  of  the  timid,  as  to  compel  many  persons  to  surrender 
their  freedom  of  action  and  submit  to  the  dictation  of  others  in 
the  management  of  their  private  business  affairs.  "At  common 
law  every  person  has  individually,  and  the  public  has  also  col- 
lectively, a  right  to  require  that  the  course  of  trade  should  be 
kept  free  from  unreasonable  obstruction;"'  nor  can  the 
ordinary  methods  of  the  boycott  be  justified  as  matter  of  trade 
competition ;  *  since  the  relations  involved  are  not  those  of 
trade  competitors  engaged  in  rivalry  for  a  market  for  their 
products ;  inducing  one's  employees  to  leave  his  service,  or 
interfering  with  the  employment  of  workmen,  for  the  purpose 
of  crippling  his  business,  where  the  organization  is  not  itself 
engaged  in  any  business,  competitive  or  otherwise,  and  has  no 
need  of  labor,  its  only  object  being  to  compel  the  employer  to 

»  Lohse  Patent  Door  Co.  r.  Fuelle,  215  Mo.  421.  114  S.W.  997. 

*  Oxley  Stave  Co.  r.  Coopers'  International  Union,  72  Fed.  695,  citing  Arthur 
V.  Oakes.  63  Fed.  310;  affirmed  in  Hopkins  v.  Oxley  Stave  Co.,  83  Fed.  912, 
28  CCA.  99  ;  see  also  Lohse  Patent  Door  Co.  v.  Fuelle,  supra. 

*  Erie,  Trade  Unions,  cited  with  approval  in  Loewe  v.  Lawlor,  208  U.S.  274, 
28  Sup.  Ct.  301  ;  Purington  v.  Hinchcliff,  supra;  Jersey  City  Printing  Co.  t. 
Cassidy,  63  N.J.  Eq.  759, 53  Atl.  230 ;  Branson  v.  Industrial  Workers  of  the  World, 
aupra,  etc. 

*  March  r.  Bricklayers,  etc.,  supra;  George  Jonas  Glass  Co.  v.  Glass  Bottle 
Blowers,  72  N.J.  Eq.  653.  66  Atl.  953 ;  My  Maryland  Lodge  v.  Adt.  100  Md, 
238.  59  Atl.  721 ;  per  contra,  J.  F.  Parkinson  Co.  c.  Building  Trades  Council, 
aupra. 


288  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

concede  the  desired  terms  to  the  organization,  is  said  not  to  be 
the  competition  which  the  law  recognizes  or  upholds.  Nor  is 
the  publication  of  boycott  notices  within  the  protection  of  the 
right  of  free  speech  and  a  free  press/  since  with  the  right  of 
free  speech  there  is  a  guarantee  of  other  rights  and  liberties,  and 
it  is  a  maxim  of  jurisprudence  that  each  one  must  so  use  his  own 
rights  as  not  to  infringe  upon  the  rights  of  another ;  ^  and  it 
has  been  said  that  it  would  be  strange  indeed  if  the  right  of  free 
speech  could  be  used  to  sustain  the  carrying  out  of  an  unlawful 
and  criminal  conspiracy.'  It  has  been  contended  against  this 
view  that  the  restraint  of  publication  cannot  be  effected  by 
the  courts,  since  courts  will  not  interfere  with  the  publication 
of  a  libel,  but  will  leave  the  parties  to  their  freedom  of  action, 
subject  to  liability  for  the  consequences.*     But  "there  is  a 

'  Loewe  v.  California  State  Fed.  of  Labor,  139  Fed.  71 ;  Crump  v.  Com.,  84 
Va.  927,  6  S.E.  620  ;  Shine  v.  Fox  Bros.  Mfg.  Co.,  supra;  Beck  v.  Ry.  Teamsters, 
Prot.  Union,  supra;  My  Maryland  Lodge  v.  Adt,  supra;  Buck's  Stove  &  Range 
Co.  V.  American  Fed.  of  Labor,  35  Wash.  L.  R.  797 ;  Huttig  Sash  &  Door  Co.  v. 
Fuelle,  143  Fed.  363  ;  and  see  Loewe  v.  Lawlor,  supra. 

» Jordahl  v.  Hayda,  1  Cal.  App.  696,  82  Pac.  1079.  "While  our  republican 
government  guarantees  the  right  to  pursue  one's  own  happiness,  yet  that  gov- 
ernment is  charged  with  the  duty  of  protecting  others  than  appellant  in  the 
pursuit  of  their  happiness,  and  hence  the  inalienable  right  to  pursue  one's  own 
happiness  must  necessarily  be  subject  to  the  same  right  in  all  others.  Hence, 
when  that  right  is  asserted  in  such  a  manner  as  to  conflict  with  the  equal  right 
to  the  same  thing  in  others,  it  is  not  an  inalienable  right  at  all,  but  is  a  wrong." 
Townsend  v.  State,  147  Ind.  624,  47  N.E.  19. 

5  Thomas  v.  Cincinnati,  etc.,  R.  Co.,  62  Fed.  803. 

*  Marx  &  Haas  Co.  v.  Watson,  168  Mo.  135,  67  S.W.  391 ;  Lindsay  v.  Montana 
Fed.  of  Labor,  supra.  In  the  former  case  it  was  said  that  there  was  no  authority 
under  the  constitution  for  a  distinction  between  proceedings  to  enjoin  the  pub- 
lication of  a  libel  and  one  to  enjoin  publications  of  any  other  sort,  however  in- 
jurious. "No  halfway  house  stands  between  prevention  and  absolute  freedom. 
.  .  .  The  two  ideas,  the  one  of  absolute  freedom  to  say,  write,  or  publish  what- 
ever he  will  on  any  subject,  coupled  with  the  responsibility  therefor,  and  the 


LABOR  DISPUTES  289 

clear  distinction  between  suits  to  enjoin  the  publication  of  a 
libel,  and  one  to  restrain  acts  to  intimidate  persons  from  dealing 
with  another.  In  the  one,  when  the  acts  complained  of  consist 
of  such  misrepresentations  of  a  business  that  they  tend  to  its 
injury  and  damage  to  its  proprietor,  the  offense  is  simply  a  libel ; 
and  in  this  country  the  courts  have  with  great  unanimity  held 
that  they  will  not  interfere  by  injunction,  but  that  the  injured 
party  must  rely  upon  his  remedy  at  law.  On  the  contrary, 
when  the  attempt  to  injure  consists  of  acts  or  words  which  will 
operate  to  intimidate  and  prevent  the  customers  of  a  party  from 
dealing  with  him,  or  laborers  from  working  for  him,  the  courts 
have,  with  nearly  equal  unanimity,  interposed  by  injunction."  ^ 
A  distinction  is  sometimes  drawn  between  what  are  classed 
as  primary  and  secondary  boycotts.  In  the  former,  the  action 
is  directly  against  the  offending  employer,  the  members  of  the 
organization  simply  withholding  their  patronage  as  laborers  or 
purchasers,  and  inducing  their  fellows  to  do  the  same.  The 
mere  withholding  of  patronage  or  refusal  to  trade  is  not  unlaw- 
ful,'^ and  the  announcement  or  publication  of  such  a  purpose  is 
within  the  rights  of  the  persons  agreeing  together,  even  though 

other  idea  of  preventing  any  such  free  speech,  free  writing,  or  free  publication, 
cannot  coexist."  The  fact  that  the  defendants  were  without  funds  or  property 
that  could  be  attached  in  a  damage  suit  was  said  not  to  affect  the  situation, 
though  it  left  the  plaintifif  company  open  to  ruinous  attacks  with  no  possibility 
of  recovery  or  redress.  This  case  was  commented  on  adversely  in  Rocky 
Mountain  Tel.  Co.  v.  Montana  Fed.  of  Labor,  157  Fed.  821  ;  and  see  Lohse 
Patent  Door  Co.  v.  Fuelle,  supra. 

'  Cceur  d'Alcne  Consol.  Min.  Co.  v.  Miners'  Union,  51  Fed.  200;  and  see 
Beck  V.  Railway  Teamsters'  Union,  supra;  Casey  r.  Cincinnati  Typ.  Union,  45 
Fed.  135  ;  Gray  v.  Building  Trades  Council,  supra. 

*  Toledo,  etc.,  R.  Co.  v.  Penna.  Co.,  54  Fed.  730 ;  State  r.  Glidden,  55  Conn. 
46,  8  Atl.  890 ;  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  323 ;  Hey  v. 
WUson,  232  111.  389.  83  N.E.  928. 


290  LAW   OF  THE   EMPLOYMENT   OF  LABOR 

it  results  in  the  injury  of  the  person  against  whom  the  acts  are 
directed.^  And  it  will  follow  that  persons  freely  joining  in  such 
withholding  of  business  intercourse  will  not  by  their  acts  incul- 
pate either  themselves  or  the  original  actors.  But  such  is  not 
the  usual  course  of  the  boycott ;  and  indeed  the  definitions  usu- 
ally adopted  do  not  cover  such  acts,  but  are  applicable  only  to 
the  second  class,  or  the  so-called  secondary  boycotts  (sometimes 
called  compound  boycotts),  which  are  generally  understood  to 
mean  combinations  to  harm  one  person  by  coercing  others  to 
harm  him,  as  already  set  forth  above.  Exceptions  to  the 
practically  uniform  declaration  as  to  the  illegality  of  such 
boycotts  are  to  be  found  where  the  employer  extends  or 
seeks  to  extend  his  activities  by  combinations  with  others 
of  his  class.  Thus  where  an  employer  whose  men  are  on 
strike  sends  material  to  be  worked  up  by  other  employers, 
it  is  justifiable  for  sympathizers  with  the  original  strikers  to 
withhold  service  from  these  other  employers  for  the  purpose  of 
inducing  them  to  refrain  from  dealing  with  him,  and  so  seek  to 
isolate  him  from  business.  "To  whatever  extent  employers 
may  lawfully  combine  and  cooperate  to  control  the  supply  and 
conditions  of  work  to  be  done,  to  the  same  extent  should  be 
recognized  the  right  of  workmen  to  combine  and  cooperate  to 
control  the  supply  and  the  conditions  of  the  labor  that  is  nec- 
essary to  the   doing  of   the  work."  ^     The  supreme    court  of 


1  Gray  v.  Building  Trades  Council,  supra;  People  v.  McFarlin,  89  N.Y.  Supp. 
597,  43  Misc.  591 ;  Pierce  v.  Stablemen's  Union,  supra. 

»  Iron  Molders'  Union  v.  Allis-Chalmers  Co..  166  Fed.  45.  91  CCA.  631.  See 
also  Sinsheimer  v.  United  Garment  Workers,  77  Hun,  215,  28  N.Y.  Supp.  321, 
where  relief  was  denied  an  employer  who  was  held  not  to  have  "come  into  court 
with  clean  hands,"  having  himself  employed  methods  similar  to  those  of  which 
he  complained. 


LABOR  DISPUTES  291 

California  "recognizes  no  substantial  distinction  between  the 
so-called  primary  and  secondary  boycott,"  permitting  strikers 
not  only  to  withhold  their  own  patronage,  but  also,  "  by  threat 
of  like  boycott,  to  coerce  others  into  doing  so."  However,  it 
held  illegal  any  act  which  tends  to  impair  the  right  of  free  action 
by  individuals  by  means  passing  beyond  moral  suasion  and 
playing  by  intimidation  upon  the  physical  fears.^  A  dissent- 
ing opinion  in  the  Pierce  case  pointed  out  what  is  no  doubt  a 
fatal  weakness  in  the  position  taken  by  the  majority,  contend- 
ing that  the  use  of  any  means  constituting  duress,  menace,  or 
undue  influence  would  render  the  boycott  unlawful.  "Whether 
this  coercion  or  compulsion  comes  from  fear  of  physical  violence, 
as  in  the  case  of  picketing,  or  from  fear  of  financial  loss,  as  in 
the  'secondary  boycott,'  or  from  fear  of  any  other  infliction,  is, 
in  my  opinion,  immaterial,  so  long  as  the  fear  is  sufficiently 
potent  to  control  the  action  of  those  upon  whom  it  is  cast." 

In  a  few  states  boycotting  is  forbidden  by  statute,  the  term 
"boycott"  being  used  for  the  most  part  without  definition;'^ 
while  in  two  other  states  concerted  refusal  to  trade  with  dealers 
or  manufacturers,  or  concerted  action  to  interfere  with  their 
business,  is  made  an  offense.'  The  effect  of  these  statutes  is 
slight,  since  they  are  little  if  any  more  than  a  declaration  of  the 
rules  of  the  common  law.  "Neither  at  common  law  nor  under 
statutes  modifying  the  common  law  doctrine  is  it  lawful  for 
workmen  to  combine  to  injure  another's  business  by  causing 
his  employees  to  leave  his  service  by  intimidation,   threats, 

1  Pierce  v.  Stablemen's  Union,  supra;  approving  Parkinson  r.  Building  Trades 
Council,  supra,  and  citing  as  a  supporting  case  Lindsay  v.  Montana  Federation 
of  Labor,  supra. 

»  Ala..  Code,  sec.  6396 ;  Colo.,  Acts  1905.  ch.  79  ;  111.,  Acts  1905,  ch.  38. 

» Ind.,  A.S.,  sec.  3312m  ;  Texas,  Acts  1903,  ch.  94. 


292  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

molestation,  or  coercion."  ^  They  have  the  effect,  however, 
of  declaring  the  policy  of  the  state  in  regard  to  any  possible 
departure  from  the  rule  laid  down. 

Besides  the  statutes  prohibiting  boycotting,  a  number  of 
statutes  have  been  referred  to  in  boycott  cases  as  violated  by 
the  acts  complained  of.  Thus  a  statute  of  Wisconsin,^  which 
penalizes  combinations  for  the  purpose  of  willfully  or  maliciously 
injuring  the  trade  or  business  of  another,  was  held  to  be  con- 
stitutional and  applicable  in  a  case  of  a  combination  of  a  number 
of  managers  of  newspapers  to  boycott  a  rival  publisher.^  The 
legislature  was  held  to  have  the  power  to  make  the  question  of 
motive  a  material  one ;  nor  can  the  right  to  punish  malicious  acts 
be  denied  because  they  are  to  be  followed  and  worked  out  by 
conduct  which  might  have  been  lawful  if  not  preceded  by  such 
acts.  This  corresponds  to  the  principles  controlling  in  the 
doctrine  of  conspiracy,  whether  under  statute  or  common  law.* 
A  similar  statute  of  New  York  ^  was  held  to  have  like  applica- 
tion in  a  boycott  case  in  which  there  was  neither  violence  nor 
threat  of  violence,  where  the  combination  was  against  builders 
who  should  buy  materials  of  any  dealer  not  approved  by  the 
union.® 

The  federal  antitrust  act  ^  was  made  the  basis  of  an  action 
against  a  labor  organization  which  had  largely  reduced  the  sales 

'  8  Cyc.  639,  cited  with  approval  in  Branson  v.  Industrial  Workers  of  the 
World,  supra.  '  A.S.,  sec.  4466a. 

»  Aikens  v.  Wisconsin,  195  U.S.  194,  25  Sup.  Ct.  3. 

*  Sec.  118.     And  see  Purington  v.  Hinchcliff,  supra. 
»  Penal  Code,  sec.  168,  subd.  6. 

•  People  V.  McFarlin,  supra.  See  also  Branson  v.  Industrial  Workers  of  the 
World,  supra,  where  a  boycott  was  undertaken  to  compel  an  employer  to  union- 
use  his  plant,  the  boycott  being  classed  as  a  criminal  conspiracy  under  sec.  4751, 
G.L.  of  Nevada.  » 26  Stat.  209,  U.S.  Comp.  St.,  p.  3200. 


LABOR  DISPUTES  293 

of  the  complainant's  products  by  boycotts  in  various  parts  of 
the  United  States,  and  the  court  found  that]there  was  a  punish- 
able combination  or  conspiracy  to  interfere  with  trade  or  com- 
merce among  the  several  states,  as  prohibited  by  the  statute.^ 

Another  federal  statute  that  has  been  invoked  is  the  provision 
forbidding  attempts  to  defraud  by  the  use  of  the  United  States 
mails.2  In  this  case  a  fine  was  assessed  against  a  manufactur- 
ing company  by  a  union  because  of  a  refusal  of  demands  to 
employ  only  union  workmen.  A  boycott  was  declared  against 
the  company's  products  and  notice  thereof  was  mailed  to  its 
customers.  This  was  held  to  be  a  violation  of  the  statute, 
whether  viewed  as  a  means  of  inducing  the  payment  of  the  fine 
to  escape  the  boycott,  or  as  a  means  of  maintaining  the  boycott 
to  the  injury  of  the  complainant's  business.' 

Section  123.  Blacklists.  —  A  blacklist  is  in  brief  a  list  of 
persons  marked  out  for  unfavorable  discrimination  in  business 
or  social  relations.  As  the  term  is  generally  used,  it  applies  to 
lists  kept  by  groups  or  associations  of  employers  for  their  mutual 
information  as  to  workmen  to  whom  employment  will  be  re- 
fused on  the  basis  of  certain  facts  or  alleged  facts  stated  or 
assumed  in  connection  with  the  placing  of  the  names  on  the 
lists.  A  mere  exchange  of  information,  leaving  each  employer 
free  to  act  on  his  own  judgment  in  the  case,  is  not,  in  the  absence 
of  statute,  illegal.'*     It  has  already  been  stated  that  the  giving 


>  Loewe  r.  Lawlor.  208  U.S.  274,  28  Sup.  Ct.  301.  See  also  Buck's  Stove  dc 
Range  Co.  v.  American  Fed.  of  Labor,  37  Wash.  L.  R.  822. 

*  R.S.,  sec.  5480,  U.S.  Comp.  St.,  p.  3696. 
»  United  States  r.  Raish.  163  Fed.  911. 

*  Willis  V.  Muscogee  Mfg.  Co.,  120  Ga.  597,  48  S.E.  177 ;  Boyer  v.  Western 
Union  Tel.  Co..  124  Fed.  246 ;  Waba.sh  R.  Co.  t>.  Young,  162  Ind.  102,  69  N.E. 
1003  ;  Baker  v.  Ins.  Co.  (Ky.),  64  S.W.  913. 


294  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

of  recommendations  or  clearance  cards  at  the  termination  of 
employment  is  not  obligatory  on  the  employer  (sec.  14) ;  but 
in  any  information  which  an  employer  offers  he  must  avoid 
perversion  of  facts,  as  he  will  be  liable  for  false  or  unfair  state- 
ments concerning  his  workmen.^  The  same  is  true  as  to  state- 
ments made  maliciously  or  for  purposes  of  wrongful  interference 
with  the  relation  of  employer  and  employee;  and  where  it 
appears  that  one  is  blacklisted  "without  cause  or  provocation," 
a  suit  for  damages  will  lie  if  it  is  shown  that  the  person  so  black- 
listed was  thereby  cut  off  from  opportunity  for  employment,  to 
his  injury. 2 

It  has  been  said  that  a  discharged  employee  cannot  recover 
damages  against  one  blacklisting  him  and  so  procuring  his  dis- 
charge, even  though  the  act  was  malicious,  unless  there  was  co- 
ercion or  deception,  causing  the  discharge  against  the  will  or 
contrary  to  the  purpose  of  the  employer,^  but  this  view  is  not  in 
harmony  with  what  appears  to  be  the  better  and  more  common 
opinion ;  *  and  where  a  workman  is  blacklisted  by  a  former 
employer,  and  others  in  association  with  the  employer  refuse 
employment  because  of  the  information  given,  the  agreement 

1  Willis  V.  Muscogee  Mfg.  Co.,  supra;  Hundley  c.  Louisville  &  N.  R.  Co.,  105 
Ky.  197,48  S.W.  429  ;  St.  Louis  S.W.R.  Co.  v.  Hixon  (Tex.  Civ.  App.),  126  S.W. 
338.  See  also  Davis  v.  New  England  R.  Pub.  Co.,  203  Mass.  470,  89  N.E.  565. 
(This  case  involved  the  omission  of  a  firm  name  from  a  list  of  all  local  "  repu- 
table express  companies.") 

»  Mattison  v.  R.  Co.,  3  Ohio  Dec.  526  ;  Willner  v.  Silverman,  109  Md.  341.  71 
Atl.  962 ;  Hundley  v.  Louisville  &  N.  R.  Co.,  supra;  Rhodes  v.  Granby  Cotton 
Mills  (S.C),  68  S.E.  824;  see  also  Willett  v.  Jacksonville,  etc.,  R.  Co.  (U.S.  C. 
C,  1896,  S.  D.  of  Florida)  in  which  the  plaintiff  obtained  judgment  in  the 
amount  of  $  1700  for  loss  of  employment  with  another  company  on  account  of 
a  letter  written  by  his  former  employer. 

»  Baker  v.  Ins.  Co.  (Ky.),  67  S.W.  967. 

<  Joyce  V.  Great  Northern  R.  Co.,  100  Minn.  225,  110  N.W.  975;  and  cases 
in  note.2,  supra. 


LABOR  DISPUTES  295 

will  be  condemned  as  a  conspiracy  if  the  circumstances  show  it 
to  be  injurious  and  without  warrant  in  fact.^ 

A  number  of  states  have  statutes  prohibiting  blacklisting.' 
The  constitutionality  of  these  statutes  has  been  maintained, 
their  purpose  being  to  protect  employees  in  their  natural  and 
constitutional  right  to  sell  their  labor  and  acquire  property.' 
The  Indiana  statute  refers  only  to  the  blacklisting  of  discharged 
employees,  and  is  therefore  held  not  to  be  applicable  to  cases 
where  one  voluntarily  left  service ;  *  while  in  construing  the 
Minnesota  statute,  which  names  both  those  who  leave  volun- 
tarily and  those  who  are  discharged,  the  court  said  that  the 
fact  that  an  employee  left  his  place  voluntarily  does  not  give  the 
employer  the  right  to  prejudice  his  employment  elsewhere, 
and  that  it  was  not  a  sufficient  answer  that  the  employer  may 
have  cause  for  making  the  statement,  or  that  it  may  be  to  the 
mutual  advantage  of  all  employers  in  an  association,  since  if 
such  were  the  facts  in  the  case,  they  would  not  bar  the  action 
but  would  be  available  only  as  a  matter  of  defense.^ 

Section  124.  Interference  with  Employment,  Intimidation, 
etc.  —  Not  falling  specifically  under  any  of  the  foregoing  heads 
and  involving  forms  of  collective  action,  thus  differentiating 
them  in  some  respects  from  the  acts  of  individuals  already 
considered  (sec.  15),  there  are  yet  to  be  noticed  some  forms  of 

•  Rhodes  V.  Granby  Cotton  Mills,  supra.  (Plaintiff  was  blacklisted  as  a 
striker,  and  so  published,  although  it  was  clearly  shown  that  he  was  not.) 

»Ala.,  Code,  sec.  6398;  Conn.,  Acts  1909,  ch.  153;  Ind.,  A.S.,  sec.  7076; 
Minn.,  R.L.,  sec.  5097  ;  N.C.,  Acts  1909,  ch.  858 ;  U.S.,  30  Stat.  424,  Comp.  L., 
p.  3205. 

«  State  V.  Justus,  85  Minn.  279,  88  N.W.  759  ;  St.  Louis  S.  W.  R.  Co.  r.  Hixon, 
Bupra;  Joyce  v.  Great  Northern  R.  Co.,  supra. 

•  Wabash  R.  Co.  v.  Young,  supra. 

•  State  r.  Justus,  supra. 


296  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

interference  with  the  employment  of  labor  or  the  conduct  of 
business  by  methods  which  the  law  does  not  sanction.  It  has 
been  seen  that  the  courts  will  take  note  of  injuries  inflicted  or 
threatened  where  they  follow  the  unwarranted  and  improper 
exercise  of  such  powers  as  are  possessed  by  a  collective  body, 
even  though  there  be  neither  fraud  nor  coercion  by  violent 
means ;  and  the  unjustifiable  interference  by  way  of  persuasion 
or  the  enticement  of  workmen,  involving  the  violation  of  a 
contract  not  to  become  members  of  a  union,  has  been  held  to 
entitle  an  employer  to  an  injunction  against  members  of  a 
labor  union  who  were  seeking  to  unionize  his  plant ;  ^  but  where 
such  a  complaint  is  made,  and  it  appears  that  the  employees 
are  in  fact  members  of  the  association  complained  of,  the  right 
of  officials  to  confer  with  their  membership,  and  the  right  of 
workmen  to  act  singly  or  collectively  in  the  matter  of  seeking 
improved  conditions  of  employment,  will  operate  to  prevent 
the  issue  of  an  injunction  against  counseling  and  advising  on 
such  subjects.^ 

Employees  who  are  members  of  a  union  may  take  the  initia- 
tive and  procure  the  restraint  of  a  rival  union  which  seeks  to 
procure  their  discharge  and  the  employment  of  no  others  than 
members  of  such  rival  union.^  The  contrary  view  was  taken  in 
a  case  in  which  it  was  said  that  the  object  of  the  rival  union  to 
secure  employment  for  its  own  members  was  sufficient  justifi- 
cation for  acts  leading  to  the  discharge  of  the  complainants, 
though  there  was  a  strong  dissenting  opinion.'*    In  this  case  the 

»  Flaccus  V.  Smith,  199  Pa.  St.  128,  48  Atl.  894 ;  Hitchman  Coal  Co.  v.  Mitchell, 
172  Fed.  963.  «  Wabash  R.  Co.  v.  Hannahan,  121  Fed.  563. 

»  Plant  V.  Woods,  176  Mass.  492,  57  N.E.  1011 ;  Erdman  v.  MitcheU,  207  Pa. 
St.  79,  56  Atl.  327. 

*  National  Protective  Aaa'n.  v.  Cumming,  170  N.Y.  315,  63  N.E.  369. 


LABOR  DISPUTES  297 

majority  of  the  court  seems  to  have  lost  sight  of  the  rule  of  law 
that  one  man's  rights  end  where  another's  begin.  "An  inter- 
ference by  a  combination  of  persons  to  obtain  the  discharge  of  a 
workman  because  he  refuses  to  comply  with  their  wishes,  for 
their  advantage,  in  some  matter  in  which  he  has  a  right  to  act 
independently,  is  not  competition."  ^  The  right  to  seek  em- 
ployment is  an  inherent  one,  and  an  association's  noninter- 
ference with  a  workman  in  the  exercise  of  that  right  is  in  no  sense 
a  ground  for  claiming  that  such  an  association  had  protected 
him  in  his  employment  or  had  conferred  any  legal  benefit  upon 
him,  since  it  had  no  right  to  interfere  with  him  in  this  respect ; ' 
and  an  unwarranted  expulsion  of  a  member,  leading  to  his  dis- 
charge from  employment,  will  support  an  action  for  the  recovery 
of  damages  for  causing  the  discharge.^  It  has  also  been  held 
that  a  labor  union  maybe  enjoined  from  the  expulsion  of  mem- 
bers in  a  manner  intended  to  improperly  influence  their  free 
action  in  the  matter  of  employment,  where  such  expulsion  is  a 
part  of  a  number  of  intimidating  and  unlawful  acts.*  An  action 
for  damages  will  lie  where  a  nonunion  workman  is  shown  to  be 
maliciously  deprived  of  employment  by  reason  of  the  action  of 
a  labor  organization ;  *   so  also  if  the  discharged  workman  was 

»  Berry  v.  Donovan,  188  Mass.  353,  74  N.E.  603. 
«  Levin  v.  Coagrove,  75  N.J.L.  344,  67  Atl.  1070. 

»  Campbell  v.  Johnson.  167  Fed.  102,  92  CCA.  654 ;  Brennan  v.  United  Hat- 
ters, 73  N.J.L.  729.  65  Atl.  165. 

*  Connett  r.  United  Hatters,  76  N.J.  Eq.  202,  74  Atl.  188. 

•  Curran  v.  Galen,  152  N.Y.  33,  46  N.E.  297 ;  Perkins  c.  Pendleton,  90  Me. 
166,  38  Atl.  96 ;  Berry  v.  Donovan,  supra.  In  the  Curran  and  Berry  cases  the 
discharge  was  in  consequence  of  contracts  with  employers  to  employ  only  mem- 
bers of  unions,  resulting  in  the  discharge  of  plaintiffs  from  emplojTnont.  In  the 
case  of  Perkins  v.  Pendleton,  the  court  said  :  "  Merely  to  induce  another  to  leave 
an  employment,  or  to  discharge  an  employee,  by  persuasion  or  argument,  however 
whimsical,  unreasonable,  or  absurd,  is  not,  in  and  of  itself,  unlawful,  and  we  do 


298  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

a  member  of  another  union/  the  rule  of  law  being  that  any 
malicious  interference  with  the  contract  relation  will  ground 
an  action  if  damage  ensues.^  Where  the  action  of  a  union  not 
only  interferes  with  the  employment  of  the  former  members, 
expelled  without  just  cause,  but  also  seeks  to  control  their  con- 
duct in  matters  of  public  duty,  an  added  reason  exists  for  re- 
straint against  further  interference,  while  damages  will  be  al- 
lowed for  the  loss  of  employment.' 

The  interference  complained  of  may  be  of  a  more  general  sort, 
directed  against  the  business  of  an  employer  by  way  of  con- 
spiracy. Where  there  is  an  agreement  to  induce  one's  em- 
ployees to  cease  work  and  to  refrain  from  working  until  some 
unauthorized  mandate  of  those  in  agreement  is  complied  with, 
the  latter  may  be  held  and  punished  for  conspiracy.^     Where 

not  decide  that  such  interference  may  become  unlawful  by  reason  of  the  de- 
fendant's malicious  motives,  but  simply  that  to  intimidate  an  employer  by 
threats,  if  the  threats  are  of  such  a  nature  as  to  induce  this  result,  and  thereby 
cause  him  to  discharge  an  employee  whom  he  desired  to  retain,  and  would  have 
retained  except  for  such  unlawful  threats,  is  an  actionable  wrong." 
»  Ruddy  11.  Journeymen  Plumbers,  79  N.J.L.  467,  75  Atl.  742. 

*  Angle  V.  Chicago  R.  Co.,  151  U.S.  1,  14  Sup.  Ct.  240. 

'Schneider  v.  Journeymen  Plumbers,  etc.,  116  La.  270,  40  So.  700.  In  this 
case  members  of  a  union  who  were  appointed  by  the  mayor  as  examiners  of 
plumbers  applying  for  certificates  in  the  city  of  New  Orleans  were  fined  and  ex- 
pelled for  not  choosing  as  inspector  a  member  indicated  by  the  union.  They 
were  also  deprived  of  employment  by  reason  of  the  loss  of  membership.  The 
judgment  in  this  case  awarded  restoration  of  membership,  remission  of  the  fines, 
damages,  actual  and  punitive,  and  an  injunction  against  further  interference 
with  their  employment. 

*  State  V.  Dalton.  134  Mo.  App.  517,  114  S.W.  1132.  (The  members  of  two 
labor  unions  combined  to  secure  the  payment  of  a  fine  levied  on  an  employer.) 
Employing  Printers'  Club  v.  Doctor  Blosser  Co.,  122  Ga.  509,  50  S.E.  353.  (An 
association  of  printers  and  publishers  combined  to  fix  prices  and  prevent  compe- 
tition, and  levied  a  fine  against  the  Doctor  Blosser  Co.  for  accepting  work  in 
violation  of  the  agreement.  On  his  refusal  to  pay  the  fine  his  business  was 
interfered  with  and  his  employees  coerced  into  withdrawing  from  his  service.) 


LABOR  DISPUTES  299 

intimidation  and  violence  are  used  *there  is  of  course  no  question 
of  the  illegality  of  the  acts  no  matter  how  lawful  the  object  in 
view  might  be ;  ^  and  unions  giving  financial  support  to  strikers 
and  pickets  guilty  of  such  unlawful  conduct  will  be  themselves 
liable  for  so  aiding  and  abetting  it.^ 

A  number  of  statutes  have  been  enacted  directed  to  the 
subject  of  interference  with  employment,  conspiracy  against 
workingmen,  intimidation,  etc.  Some  of  these  apply  to  specific 
employments,  as  those  prohibiting  interference  with  or  the  in- 
timidation or  molestation  of  railroad  employees,^  or  seamen.'* 
More  commonly,  however,  the  acts  are  of  general  application 
and  prohibit  conspiracy  against  or  interference  with  any  lawful 
business  by  force  or  by  threats  of  violence  to  person  or  prop- 
erty ;  *  or  the  use  of  means  calculated  or  intended  to  intimi- 
date or  compel  one  against  his  will  to  do  or  refrain  from  doing 
any  act  which  he  has  a  legal  right  to  do,  or  injury  or  threats  of 
injury  to  person  or  property  with  intent  to  intimidate  any 
person ;  ®  or  threats,  violence,  or  intimidation  preventing  or 
attempting  to  prevent  any  person  from  engaging  or  remaining 
in  any  lawful  business,  employment,  or  occupation.''  The.se 
laws  for  the  most  part  embody  the  principles  of  the  common  law 
relative  to  conspiracy  or  the  unlawful  infringement  on  the  rights 
of  others  by  coercion  or  other  improper  means.     While  they  are 

»  Purvis  V.  Carpenters  and  Joiners,  214  Pa.  St.  348,  63  Atl.  585. 

»  Jones  V.  Maher,  116  N.Y.  Supp.  180,  62  Misc.  Rep.  388. 

»  Del.,  R.C..  p.  928,  sec.  3  ;  111.,  R.S.,  oh.  114,  sees.  109,  110 ;  Ky.  St.,  sec.  803. 

«La.,  R.L.,8ec.  944. 

» Ala.,  Code,  sees.  6394,  6856. 

•  Conn.,  Acts  1909,  ch.  202. 

'Ga.,  Pen.  Code,  sees.  123-126;  see  also  III.,  R.S.,  ch.  38,  sees.  158,  159; 
Me.,  Acts  1903,  ch.  127.  sec.  21 ;  Mass.,  Acts  1909,  ch.  514,  sec.  18;  N.Y.,  C.L., 
ch.  40,  sec.  530 ;  Wash.,  Acts  1909,  ch.  249,  sec.  362. 


300  LAW  OP  THE  EMPLOYMENT  OF  LABOR 

penal  in  form  and  effect,  subjecting  their  violators  to  penalties 
of  fines  or  imprisonment/  their  violation  also  operates  to  give 
a  right  of  action  to  a  party  injured  by  the  unlawful  act.'^ 
"When  such  an  injury  results,  from  the  execution  of  a  con- 
spiracy, it  is  the  wrongful  act  done  in  carrying  out  the  concerted 
plan,  and  not  the  conspiracy  itself  which  furnishes  the  real 
ground  for  a  civil  action."  In  all  the  above  cases  the  defendant 
or  defendants  were  agents  or  members  of  labor  organizations, 
and  their  actions  were  regarded  as  representing  the  force  and 
influence  of  numbers.  Thus  in  the  Fischer  case,  it  was  said  that 
"the  accused  was  present,  and  professed  to  speak  as  the 
authorized  agent  of  a  large  organization."  In  Wyeman  v.  Deady, 
"Deady  was  the  business  agent  and  so-called  walking  delegate 
of  the  defendant  union,  and  did  said  acts  not  only  with  the 
knowledge  and  approval,  but  by  the  authority  of  the  union,"  etc. 
This  fact  would  bring  the  acts  within  the  common  law  principle 
of  conspiracy,  while  it  was  also  true  that  the  acts  were  unjusti- 
fiable interference  with  employment,  usually  by  violent  or  co- 
ercive means,  so  that  they  would  apparently  have  come  under 
the  condemnation  of  the  law  without  statutory  provision. 
But  as  remarked  in  another  connection,  such  statutes  have  at 
least  the  effect  of  declaring  the  policy  of  the  states  in  which 
they  exist,  and  so  have  a  measure  of  value. 

Section  125.  Remedies  by  Suits  at  Law.  —  It  has  frequently 
appeared  in  the  foregoing  sections  that  persons,  employers  or 
employees,  may  recover  damages  for  injurious  interference, 
without  justification,  with  employment  or  business  by  acts 

I  state  V.  Stockford,  77  Conn.  227,  68  Atl.  769 ;  State  v.  McGee,  80  Conn. 
614,  69  Atl.  1059  ;  Fischer  r.  State,  101  Wis.  23,  76  N.W.  594. 

*  Wyeman  v.  Deady,  79  Conn.  414,  65  Atl.  129  ;  Carter  v.  Oster,  134  Mo.  App. 
146,  112  S.W.  995. 


LABOR  DISPUTES  301 

done  in  connection  with  labor  disputes;  and  it  only  remains 
under  this  head  to  illustrate  briefly  the  manner  and  extent  of 
the  application  of  this  rule  of  law. 

An  employer  is  entitled  to  a  judgment  for  damages  where  a 
union  has  unjustifiably  caused  injury  on  account  of  his  failure 
to  carry  on  his  business  according  to  the  methods  prescribed  by 
the  union.^  In  the  Carew  case  a  union  levied  a  fine  on  an  em- 
ploying stonecutter,  and  coerced  him  into  payment  by  procur- 
ing his  workmen  to  leave  him  until  he  was  unable  to  fill  his  con- 
tracts, the  purpose  being  to  enforce  the  closed  shop.  To  compel 
one  to  yield  to  an  illegal  demand  in  order  to  secure  the  privilege 
of  carrjang  on  his  business  was  said  to  be  unlawful,  if  not  actu- 
ally a  criminal  conspiracy,  and  is  "a  species  of  annoyance  and 
extortion  which  the  common  law  has  never  tolerated."  The 
judgment  included  the  repayment  to  the  employer  of  the  amount 
of  the  fine,  as  well  as  damages.  In  order  to  recover  a  fine  in  such 
circumstances,  it  must  appear  that  it  was  paid  under  coercion 
and  to  remove  an  actual  obstacle  to  the  conduct  of  business, 
since,  if  paid  voluntarily  or  without  duress,  it  will  not  be  recov- 
erable.^ In  the  case  of  the  Old  Dominion  Steamship  Company, 
the  union  had  interfered  with  the  shipping  of  sailors,  and  de- 
clared a  boycott  because  the  company  had  refused  to  pay 
laborers  in  one  locality  the  rates  usually  paid  more  skilled  men 
in  another  locality.     In  the  cases  of  the  F,  R.  Patch  Mfg.  Com- 

>  Carew  r.  Rutherford,  106  Mass.  1,  8  Am.  Rep.  287 ;  Old  Dominion  S.S.  Co.  v. 
McKenna,  30  Fed.  48 ;  F.  R.  Patch  Mfg.  Co.  v.  Int.  Ass'n.  of  Machinists,  77  Vt. 
294,  60  Atl.  74;  O'Neil  v.  Behanna,  182  Pa.  St.  236,  37  Atl.  843;  Doremus  r. 
Hennessy,  176  111.  608,  52  N.E.  524  ;  Moores  v.  Bricklayers'  Union,  10  Ohio  Dec. 
(Rep.)  645 ;  Branson  v.  Industrial  Workers  of  the  World,  30  Nev.  270, 95  Pac. 
364  ;  Thacker  Coal  A  Coke  Co.  v.  Burke.  59  W.  Va.  253,  53  S.E.  161. 

» Burke  v.  Fay,  128  Mo.  App.  690,  107  S.W.  408.  See  also  March  v.  Brick- 
layers,  etc..  79  Conn.  7,  63  Atl.  291. 


302  LAW   OF  THE  EMPLOYMENT   OF  LABOR 

pany  and  of  O'Neil  v.  Behanna,  coercive  and  unlawful  means 
were  used  to  sustain  the  demands  of  striking  workmen.  In  the 
Doremus  case  the  violation  of  contracts  was  procured  by  a 
laundrymen's  association  seeking  to  compel  a  general  advance 
in  prices.'  In  the  case  of  Moores  v.  Bricklayers,  members  of  a 
union  had  given  notice  that  they  would  work  no  material  pur- 
chased from  a  material  man  who  had  disregarded  a  boycott 
order  issued  by  the  union.^  In  the  Branson  case  a  union  at- 
tempted to  procure  the  discharge  of  members  of  another  union 
unless  they  would  join  the  defendant  union.  In  the  case  of  the 
Thacker  Coal  Company,  members  of  the  union  were  held  to  be 
liable  in  damages  for  procuring  workmen  under  contract  to  leave 
employment,  in  an  effort  to  unionize  the  mine. 

A  leading  case  involving  the  right  of  an  employee  to  damages 
where  union  activities  prevent  his  employment  is  one  in  which 
an  agreement  between  a  union  and  an  association  of  employers 
provided  that  the  latter  would  employ  no  one  not  a  member  of 
the  union  for  a  longer  period  than  four  weeks,  within  which  time 
he  should  become  a  member  of  the  union  or  be  discharged.' 
The  plaintiff  declined  to  become  a  member,  and  was  discharged 
accordingly.  In  the  suit  against  the  union  the  only  defense 
offered  was  the  contract.  The  court  held  that  the  principle  of 
this  contract  was  "glaringly  at  variance  with  that  freedom  in 
the  pursuit  of  happiness  which  is  believed  to  be  guaranteed  to  all 
by  the  provisions  of  the  fundamental  law  of  the  state,"  and  that 
the  effectuation  of  the  purpose  expressed  in  it "  would  conflict  with 

1  See  also  Employing  Printers'  Club  v.  Doctor  Blosser  Co.,  122  Ga.  509,  50  S.E. 
353. 

»  See  also  Purington  v.  Hinchcliff,  219  111.  156,  76  N.E.  47 ;  Purvis  v.  Carpen- 
ters, etc.,  214  Pa.  St.  348,  63  Atl.  585. 

»  Curran  v.  Galen,  152  N.Y.  33,  46  N.E.  297. 


LABOR  DISPUTES  303 

that  principle  of  public  policy  which  prohibits  monopolies  and 
exclusive  privileges."  The  plaintiff,  Galen,  was  therefore  de- 
clared to  be  within  his  rights  in  suing  for  damages  resulting  from 
the  procurement  of  his  discharge.  The  fact  that  the  contract 
was  such  as  to  bar  nonunion  men  from  all  employment  locally 
was  held  to  put  this  case  on  a  different  footing  from  one  in  which 
the  contract  was  between  a  union  and  but  a  single  employer.^ 
It  was  said  in  the  Jacobs  case  that  the  doctrine  of  the  Curran 
case  had  not  been  overruled  by  the  opinion  in  a  case  in  which 
was  upheld  the  right  of  an  organization  to  threaten  strikes  so  as 
to  procure  the  discharge  of  workmen  in  order  to  secure  the  em- 
ployment of  members  in  their  stead.^  The  dissenting  opinion 
in  the  Gumming  case,  however,  was  to  the  effect  that  the  doctrine 
of  Gurran  v.  Galen  required  a  contrary  finding  in  the  case  in 
hand.  In  Massachusetts  it  is  consistently  held  that  an  employee 
is  entitled  to  damages  where  his  discharge  results  from  a  com- 
bination of  persons  to  obtain  it  because  he  refuses  to  become  a 
member  of  the  union  or  act  otherwise  for  their  advantage  in  a 
matter  in  which  he  has  the  right  to  act  independently.' 

Not  only  actual  but  punitive  damages  may  be  awarded  a 
workman  whose  employment  has  been  maliciously,  i.e.,  inten- 
tionally and  unjustifiably,  interfered  with ;  and  where  such 
interference  is  the  action  of  an  acknowledged  representative  of 
a  union,  and  is  directed  or  approved  by  the  latter,  both  he  and 
it  are  liable  as  joint  tort  feasors.*     Where  loss  of  employment 

»  Jacobs  V.  Cohen.  183  N.Y.  207,  76  N.E.  5. 

*  National  Prot.  Asa'n.  of  Steamfitters,  etc.,  r.  Gumming,  170  N.Y.  315,  63 
N.E.  369. 

'  Berry  v.  Donovan,  188  Mass.  359,  74  N.E.  603  ;  citing  many  cases.  A  judg- 
ment against  Donovan,  a  representative  of  the  union,  in  the  sum  of  $1500  waa 
affirmed.  *  Wyeman  v.  Dcady.  79  Conn.  414.  65  Atl.  129. 


304  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

follows  unlawful  expulsion  from  a  union,  damages  are  recover- 
able, as  well  as  an  order  for  reinstatement.^  Damages  may 
include  not  only  the  actual  wages  lost,  but  may  also  cover  the 
loss  of  rank,  damages  to  reputation,  and  the  hindering  of  the 
complainant's  prospects  of  advancement.* 

The  judgment  for  damages  may  lie  against  the  persons  active 
in  carrying  out  the  purposes  of  the  union,'  or  against  the  union 
as  such,^  or  against  individual  members  and  the  union. ^  Where 
a  judgment  against  a  union  is  unsatisfied,  the  amount  may  be 
recovered  against  the  individual  members ;  ®  and,  in  general, 
all  the  parties  to  a  wrongful  agreement  are  liable  for  illegal  acts 
done  in  the  carrying  out  of  the  agreement.^  The  fact  of  crimi- 
nal liability  does  not  affect  the  right  of  injured  persons  to  bring 
civil  actions  for  the  recovery  of  damages.^  In  a  number  of 
cases  where  unincorporated  unions  were  held  liable  in  damages, 
it  was  by  virtue  of  a  statute  fixing  their  status,  the  common  law 
rule  generally  observed  being  to  the  effect  that  such  bodies  can- 
not, as  such,  either  sue  or  be  sued. 

I  Schneider  v.  Journeymen  Plumbers,  etc.,  116  La.  270,  40.  So.  700 ;  Brennan 
V.  Hatters,  73  N.J.L.  729,  65  Atl.  166 ;  Blanchard  v.  Carpenters  &  Joiners,  77 
N.J.L.  389,  71  Atl.  1131. 

«  De  Minico  v.  Craig,  207  Mass.  593,  94  N.E.  317. 

5  Gatzow  V.  Buening,  106  Wis.  1,  81  N.W.  1003 ;  Curran  v.  Galen,  supra; 
O'Neil  V.  Behanna,  supra;  Carew  v.  Rutherford,  supra. 

*  F.  R.  Patch  Mfg.  Co.  v.  Int.  Ass'n.  of  Machinists,  supra;  Branson  v.  Indus- 
trial Workers  of  the  World,  supra;  Brennan  r.  Hatters,  supra;  Schneider  v. 
Journeymen  Plumbers,  supra;  Jones  v.  Maher,  116  N.Y.  Supp.  180,  62  Misc. 
Rep.  388.  '  Wyeman  v.  Deady,  supra. 

•  F.  R.  Patch  Mfg.  Co.  v.  Capeless,  79  Vt.  1,  63  Atl.  938. 

^  Purington  v.  Hinchcliff,  supra,  and  cases  cited ;  Toledo,  etc.,  R.  Co.  v. 
Penna.  Co.,  54  Fed.  730;  F.  R.  Patch  Mfg.  Co.  v.  International  Ass'n.  of  Ma- 
chinists, supra. 

sUnderhiU  v.  Murphy,  117  Ky.  640,  78  S.W.  482;  Purvis  v.  Carpenters  & 
Joiners,  supra;  Wyeman  v.  Deady,  supra. 


LABOR  DISPUTES  305 

Section  126.  Injunctions.  —  A  remedy  in  more  common  use 
than  the  suit  for  damages  is  the  preventive  remedy  of  the  in- 
junction or  restraining  order  which  issues  from  a  court  of  equity 
for  the  purpose  of  preventing  injury  or  of  preserving  the  status 
quo  until  final  determination  of  rights  can  be  had.  Though 
coming  more  widely  into  public  notice  in  recent  years  on  account 
of  its  use  in  important  labor  disputes,  the  writ  of  injunction  is 
of  ancient  origin,  its  counterpart  existing  in  the  decretal  of  the 
Roman  law.^  While  injunctions  are  most  commonly  restrictive 
or  prohibitory  in  their  operation,  the  mandatory  injunction, 
ordering  the  performance  of  a  specified  act,  is  not  unknown,  at 
least  to  the  extent  of  requiring  the  rendering  of  the  service  or 
the  performance  of  the  work  or  duty  which  is  incumbent  on  the 
enjoined  party  in  the  premises.''  The  writ  is  most  frequently 
invoked,  however,  so  far  as  concerns  the  present  study,  to  re- 
strain the  commission  of  injurious  and  unlawful  acts  in  the 
furtherance  of  labor  disputes,  as  picketing,  boycotting,  the 
distribution  of  unfair  lists,  and  other  forms  of  activity  which 
are  classed  as  coercive,  intimidating,  or  as  unjustifiably  inter- 
fering with  employment  or  business. 

The  injunction  is  classed  as  an  extraordinary  remedy,  and  is 

•  Bouvier,  Law  Diet. 

'Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  730;  Lennon  r.  Lake 
Shore,  etc.,  R.  Co.,  22  U.S.  App.  561 ;  In  re  Lennon,  166  U.S.  548,  17  Sup.  Ct.  658. 
In  this  case  the  Pennslyvania  Co.  had  sought  to  avoid  difficulty  with  its  work- 
men by  refusing  to  handle  cars  or  freight  from  the  complainant  road,  against 
which  a  strike  was  in  progress.  The  court  enjoined  the  Pennsylvania  company 
and  its  officers  and  employees  from  refusing  to  afford  the  complain.nnt  road  equal 
facilities  to  those  furnished  other  companies.  This  left  all  defendants  free  to 
cease  all  railway  service  or  emj^loyment,  but  obligated  them,  if  they  furnished 
any,  to  furnish  it  to  all  alike.  It  was  Lennon's  refusal  to  do  this,  while  still 
remaining  in  service  as  a  locomotive  engineer,  that  brought  him  under  the  judg- 
ment of  the  courts. 


306  LAW  OF  THE  EMPLOYMENT  OP  LABOR 

to  be  resorted  to  only  when  the  remedy  at  law  is  inadequate, 
"depending  on  whether  the  injury  done  or  threatened  is  of  such 
a  nature  that,  when  accomplished,  the  property  cannot  be 
restored  to  its  original  condition,  or  cannot  be  replaced  by 
means  of  compensation  in  money;  or  whether  full  compensa- 
tion for  the  entire  wrong  can  be  obtained  without  resort  to  a 
number  of  suits."  ^  While  no  final  decree  will  be  made  without 
a  hearing  of  both  parties,  a  preliminary  or  interlocutory  decree 
may  be  issued  at  the  instance  of  one  party,  who  must  show  not 
merely  possible  or  probable  danger  of  interference  with  his 
rights  or  property,  but  that  the  injury  is  either  already  occa- 
sioned and  will  continue  unless  enjoined,  or  that  it  is  so  immi- 
nent as  to  warrant  the  intervention  of  the  court.  Other  facts 
to  be  shown  are  the  irresponsibility,  from  a  financial  standpoint, 
of  the  parties  against  whom  the  injunction  is  sought;  their 
numbers,  making  suits  at  law  numerous  and  burdensome ;  and 
the  preponderance  of  the  threatened  loss  of  the  complainant 
over  the  inconvenience  of  the  respondents  which  would  follow 
the  issue  of  the  writ ;  though  not  all  of  these  would  be  required 
in  a  single  instance.^ 

Injunctions  are  granted  only  by  courts  of  equity,  and  only  in 
cases  of  equitable  cognizance  according  to  the  established  prin- 
ciples of  equity  jurisdiction.  Since  the  purpose  of  the  injunc- 
tion is  chiefly  to  maintain  present  conditions,  and  it  is  without 
power  to  procure  the  restoration  of  conditions  already  changed, 
it  is  said  that  an  injunction  will  not  issue  relating  exclusively 


>  Barr  v.  Essex  Trades  Council,  53  N.J.  Eq.  101,  30  Atl.  881. 

«  My  Maryland  Lodge  v.  Adt,  100  Md.  238,  59  Atl.  721 ;  Sherry  v.  Perkins,  147 
Mass.  212,  17  N.E.  307  ;  Coeur  d'Alene  Co.  v.  Miners'  Union,  51  Fed.  260  ;  In  re 
Debs,  158  U.S.  564,  15  Sup.  Ct.  900 ;  Dudley  v.  Hurst,  67  Md.  44,  8  Atl.  901. 


LABOR  DISPUTES  307 

to  acts  already  committed.^  It  may  be  issued,  however,  even 
after  the  termination  of  a  strike,  on  the  ground  that  the  right 
to  relief  is  to  be  determined  by  the  status  existing  at  the  time  of 
the  filing  of  the  bill.^  An  injunction  will  not  issue  to  restrain 
the  commission  of  criminal  acts,  merely  as  such,  but  where  such 
acts  involve  injuries  to  property  or  property  rights  for  which 
the  law  does  not  afford  redress  within  the  principles  laid  down 
above,  equity  will  intervene  by  means  of  the  injunction,  even 
though  the  prohibited  acts  would  be  punishable  by  the  state  as 
criminal.^  Where  there  is  no  adequate  proof  of  intimidation 
or  impending  danger,  no  writ  will  be  granted ;  *  actual  violence 
is  not  necessary,  however,  to  ground  a  successful  complaint, 
since  the  numbers  of  the  striking  employees,  their  positions, 
attitudes,  looks,  ridicule,  threats,  etc.,  may  produce  intimida- 
tion and  coercion  against  which  an  injunction  will  be  allowed.' 
The  free  use  of  streets,  free  access  to  works,  and  freedom  from 
insulting  or  otherwise  objectionable  treatment,  both  at  home 
and  in  public  places,  are  among  the  rights  of  every  citizen ;  and 
an  employer's  interest  in  such  rights  for  his  employees  and  cus- 


>  Reynolds  v.  Everett,  144  N.Y.  189,  39  N.E.  72 ;  De  Minico  r.  Craig,  207 
Mass.  593,  94  N.E.  317 ;  City  of  Alma  v.  Loehr,  42  Kans.  368,  22  Pac.  424. 

*  U.S.  V.  Workingmen's  Amalgamated  Council,  54  Fed.  944.  ("Rights  do  not 
ebb  and  flow.  If  they  are  invaded,  and  recourse  to  courts  of  justice  is  rendered 
necessary,  it  is  no  defense  to  the  invasion  of  a  right  that  since  the  institution  of 
the  suit  the  invasion  has  ceased.  With  emphasis  would  this  be  true  where,  as 
here,  the  right  to  invade  is  not  disclaimed.") 

•Sherry  v.  Perkins,  supra;  Coeur  d'Alene  Co.  v.  Miners'  Union,  supra; 
United  States  v.  Elliott,  62  Fed.  801  ;  Arthur  v.  Oakes,  63  Fed.  310,  11  CCA. 
209 ;  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103  Pac.  324. 

*  Everett-Waddy  Co.  r.  Richmond  Typ.  Union.  105  Va.  188,  53  S.E.  273 ; 
Rogers  v.  Evart,  17  N.Y.  Supp.  264. 

'  Barr  r.  Essex  Trades  Council,  supra;  Jordahl  v.  Hayda,  1  Cal.  App.  696,  82 
Pac.  1079. 


308  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

tomers,  actual  or  potential,  is  sufficient  to  support  a  complaint 
from  him  and  to  secure  an  injunction  on  a  proper  showing  of 
facts.^  In  general,  it  may  be  said  that  what  acts  will  warrant 
the  intervention  of  a  court  of  equity  will  be  determined  by 
the  circumstances  in  each  case  rather  than  by  any  general  rule, 
and  in  deciding  the  matter  the  courts  will  consider  the  spirit 
and  intent,  and  not  merely  the  form  and  letter,  of  the  act  or 
word.2 

An  injunction  may  issue  on  the  initiative  of  the  state,  to  abate 
a  public  nuisance,  such  as  the  obstruction  of  a  highway  or  in- 
terference with  the  transportation  of  the  mails ; '  and  the  fact 
that  the  act  enjoined  would  be  an  offense  punishable  criminally 
does  not  interfere  with  the  issue  of  the  writ.'*  In  the  Debs  case, 
involving  obstruction  of  the  mails  and  of  interstate  traffic,  it 
was  said  by  the  Supreme  Court:  "It  must  be  borne  in  mind 
that  this  bill  was  not  simply  to  enjoin  a  mob  and  mob  violence. 
It  was  not  a  bill  to  command  a  keeping  of  the  peace ;  much  less 
was  its  purport  to  restrain  the  defendants  from  abandoning 
whatever  emplo3Tnent  they  were  engaged  in.  The  right  of  any 
laborer,  or  any  number  of  laborers,  to  quit  work  has  not  been 
challenged.  The  scope  and  purpose  of  the  bill  was  only  to  re- 
strain forcible  obstructions  of  the  highways  along  which  inter- 
state commerce  travels  and  the  mails  are  carried." 

In  line  with  the  above,  it  is  true  that  no  injunction  will  issue 
to  restrain  a  libel  or  slander,  merely  as  such ;  and  this  fact  has 

1  American  Steel  &  Wire  Co.  v.  Wire  Drawers'  Union,  90  Fed.  608 ;  In  re 
Debs,  supra;  Jersey  City  Printing  Co.  v.  Cassidy,  63  N.J.  Eq.  759,  53  Atl.  230. 

*  Cceur  d'Alene  Co.  v.  Miners'  Union,  supra. 

*  Att'y  General  v.  Ice  Co.,  104  Mass.  239  ;  State  v.  Goodnight,  70  Texas  682, 
11  S.W.  119  ;  U.S.  V.  Debs,  64  Fed.  724  ;  In  re  Debs,  supra. 

*  In  re  Debs,  supra;  Port;  of  Mobile  v.  R.  Co.,  84  Ala.  115,  4  So.  106. 


LABOR  DISPUTES  309 

been  relied  upon  by  parties  publishing  unfair  lists,  boycott 
notices,  and  the  like,  as  a  defense  against  the  issue  of  an  injunc- 
tion to  restrain  such  publications.  It  is  held  by  the  weight  of 
authority,  however,  that  they  may  properly  be  enjoined,  not  as 
libels,  but  as  intimidating  and  coercive.'  "In  the  case  of  an 
unlawful  conspiracy,  the  agreement  to  act  in  concert  when  the 
signal  is  published,  gives  the  words  'unfair,'  *we  don't  patron- 
ize,' or  similar  expressions,  a  force  not  inhering  in  the  words 
themselves,  and  therefore  exceeding  any  possible  right  of  speech 
which  a  single  individual  might  have.  Under  such  circum- 
stances they  become  what  have  been  called  'verbal  acts,'  and 
as  much  subject  to  injunction  as  the  use  of  any  other  force 
whereby  property  is  unlawfully  damaged."  ^  It  has  been  held, 
however,  that  a  finding  containing  "no  allegations  that  the 
mere  notification  of  customers  that  plaintiffs  are  'unfair'  has 
any  special  significance,  that  it  portends  injury,  or  was  intended 
as  a  threat  or  intimidation,"  would  not  sustain  an  injunction 
forbidding  the  notification  of  customers  that  the  plaintiffs  were 
unfair ;  ^  though  it  seems  hardly  too  much  to  say  at  the  present 
time  that  the  word  has  acquired  a  technical  signification  of 
which  the  courts  might  take  cognizance,  especially  where  the 
use  of  the  word  is  one  of  a  series  of  acts  of  which  the  others  are 
enjoinablc*    Where  an  injunction  has  been  granted  restraining 

•  Coeur  d'Alene  Co.  v.  Miners'  Union,  supra;  Beck  v.  Railway  Teamsters' 
Prot.  Union,  118  Mich.  497,77  N.W.  13;  Casey  v.  Typographical  Union,  45 
Fed.  135. 

«  Gorapers  v.  Buck's  Stove  &  Range  Co.,  221  U.S.  418,  31  Sup.  Ct.  492.  See 
per  contra,  Marx  &  Haas  Jean  Clothing  Co.  r.  Watson,  168  Mo.  133,  67  S.W. 
391 ;  Lindsay  v.  Montana  Fed.  of  Labor,  37  Mont.  264,  96  Pac.  127. 

»  Gray  v.  Building  Trades  Council.  91  Minn.  171,  97  N.W.  663. 

*  Seattle  Brewing  Co.  v.  Hansen,  144  Fed.  1011 ;  Loewe  t.  Cal.  State  Fed.  of 
Labor,  139  Fed.  71 ;  Huttig  Sash  <fe  Door  Co.  v.  Fuelle,  143  Fed.  363. 


310  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

interference  with  business,  newspaper  publications  inciting  to 
a  violation  of  the  injunction  will  themselves  be  enjoined,  not  as 
depriving  the  periodical  in  question  "of  any  lawful  right  to 
publish  the  truth  or  express  its  opinion  in  a  lawful  manner; 
but  no  newspaper  has  the  right  to  publish  any  matter  intended 
to  aid  wrongdoers  in  accomplishing  a  wrongful  purpose  or  doing 
unlawful  things,  or  to  aid  unlawful  combinations  in  making 
effective  an  unlawful  conspiracy."  ^ 

Questions  of  the  jurisdiction  of  state  and  federal  courts  are 
determined  by  the  same  tests  of  diversity  of  citizenship  of  the 
parties,  or  of  the  consideration  of  federal  questions,  as  in  other 
classes  of  cases.  Thus  where  in  an  injunction  proceeding 
brought  by  a  Missouri  corporation,  involving  defendants  resi- 
dent in  Missouri  and  in  Kansas,  the  case  against  the  former 
was  dropped  in  proceedings  before  a  federal  court,  which  left 
the  case  properly  in  the  hands  of  that  court.^  Though  if  a 
federal  court  has  jurisdiction  of  an  original  case,  it  may  issue  an 
injunction  therein  without  regard  to  the  citizenship  of  the 
parties. 

A  bond  is  usually  required  before  a  preliminary  injunction 
will  issue,  to  cover  any  loss  or  damage  that  may  accrue  to  the 

1  Telephone  Co.  v.  Kent,  156  Fed.  173. 

*  Hopkins  v.  Oxley  Stave  Co.,  83  Fed.  912, 28  CCA.  99.  The  states  have  not 
accepted  with  equal  readiness  the  principles  of  equity  or  made  equally  free  use  of 
it  in  its  application  to  labor  questions,  while  federal  courts  have  been  governed 
by  a  law  declaring  their  full  equity  jurisdiction,  and  have  doubtless  felt  a  mutual 
and  general  influence  more  readily  than  has  been  the  case  with  the  state  courts. 
These  facts  may  in  part  account  for  a  somewhat  widespread  feeling  that  the  writ 
of  injunction,  especially  as  used  in  labor  disputes,  is  peculiarly  an  instrument  of 
the  federal  courts.  It  seems,  however,  that,  apart  from  cases  involving  federal 
receiverships,  injunctions  in  labor  disputes  were  first  used  by  state  courts ;  and 
it  is  said  that  the  rights  of  state  and  federal  courts  in  regard  to  the  issue  of  in- 
junctions are  "precisely  the  same."     Union  P.  R.  Co.  v.  Ruef,  120  Fed.  102. 


LABOR  DISPUTES  311 

defendant  if  it  shall  appear  at  the  final  hearing  that  the  order 
was  not  a  proper  one,  though  the  giving  of  such  bond  is  a  matter 
of  statutory  regulation.  The  injunction  becomes  effective  only 
on  the  filing  of  the  bond,  if  one  is  required,  but  is  then  binding 
on  the  parties  to  whom  it  is  directed  after  they  have  had  notice, 
without  the  necessity  of  a  formal  service  of  the  writ.  The  order 
is  also  binding  upon  all  other  persons  whatsoever,  even  if  not 
named  therein,  from  and  after  the  time  when  they  have  actual 
knowledge  of  its  existence.^  Questions  of  validity  are  deter- 
minable by  the  courts,  and  a  defendant  believing  his  rights  to 
be  infringed  upon  by  the  granting  of  an  injunction  has  recourse 
only  to  them.  Disobedience  is  at  his  peril  so  long  as  the  in- 
junction is  in  existence,  no  matter  how  erroneously  or  improvi- 
dently  it  was  granted,'^  since  "if  a  party  can  make  himself  a 
judge  of  the  validity  of  orders  which  have  been  issued,  and  by 
his  own  act  of  disobedience  set  them  aside,  then  are  the  courts 
impotent,  and  what  the  Constitution  now  fittingly  calls  the 
'judicial  power  of  the  United  States'  would  be  a  mere  mockery."^ 
"If  an  injunction  is  for  any  reason  totally  invalid,  no  violation 
of  it  constitutes  a  punishable  contempt ;  but  if  the  court  ac- 
quired jurisdiction,  and  did  not  exceed  its  powers  in  the  partic- 
ular case,  no  irregularity  or  error  in  the  procedure  or  in  the 
order  itself  could  justify  disobedience  of  the  writ."  *     A  su- 

'  Ex  parte  Lennon,  64  Fed.  320 ;  United  States  v.  Agler,  62  Fed.  824  ;  In  re 
Lennon,  supra. 

'  A.  R.  Barnes  &  Co.  t>.  Typographical  Union,  232  111.  402.  83  N.E.  932 ;  Carr 
V.  District  Court,  147  Iowa  663,  126  N.W.  791. 

'  Gompers  v.  Bucks  Stove  &  Range  Co.,  221  U.S.  418,  31  Sup.  Ct.  492  ;  and  see 
Huttig  Sash  4  Door  Co.  r.  Fuelle,  supra;  Vilter  Mfg.  Co.  v.  Humphrey,  132  Wis. 
587,  112  N.W.  1095. 

«  United  States  v.  Debs,  64  Fed.  724  ;  Ex  parte  Watkins,  3  Peters  193,  28  U.S. 
119. 


312  LAW   OF  THE   EMPLOYMENT   OF   LABOR 

perior  court  cannot  interfere  to  prevent  an  inferior  court  from 
issuing  injunctions  where  the  latter  clearly  has  jurisdiction  over 
the  matter  in  question.^  The  question  of  appeals  from  orders 
granting  injunctions  is  controlled  chiefly  by  statute,  and  it  is 
held  as  the  better  view  that  in  the  absence  of  legislative  provision 
no  appeal  will  lie  in  cases  involving  preliminary  injunctions ;  ^ 
and  even  where  the  appeal  is  allowed,  the  superior  courts  are 
averse  to  any  free  exercise  of  its  use,  requiring  a  definite  showing 
of  the  abuse  of  the  discretion  committed  to  courts  having  power 
to  issue  injunctions,  so  that  unless  it  is  shown  that  the  writ  was 
illegally  or  improvidently  granted,  it  will  not  be  disturbed ;  ^ 
and  where  a  writ  is  set  aside  for  these  reasons,  and  was  not 
technically  void  from  the  first,  prior  violations  of  it  are  punish- 
able, since  it  is  in  force  until  set  aside  by  proper  proceedings  in 
court.^  Appeals  may  be  taken  from  final  injunctions,  but  the 
appeal  does  not  suspend  the  operation  of  the  restraining  order ; 
and  to  hold  the  contrary  would  obviously  make  it  possible  to 
thwart  the  entire  purpose  of  the  injunction  in  many  cases; 
the  court  issuing  the  injunction  may  punish  violators  of  it  for 
contempts  committed  during  the  pendency  of  the  appeal,^  as 
may  also  the  appellate  court,  since  a  disregard  of  the  injunction 
under  review  is  a  contempt  of  the  court  to  which  it  is  to  be  or 
has  been  submitted.^     The  same  rule  holds  where  a  temporary 

*  State  V.  Judge,  29  La.  Ann.  360. 

*  United  States  Heater  Co.  v.  Iron  Moldera'  Union,  129  Mich.  354,  88  N.W. 
889  ;  High,  Injunctions,  4th  ed.,  sec.  1693. 

'  Bonaud  v.  Genesi,  42  Ga.  639 ;  Workingman'a  Amalgamated  Council  c. 
United  States,  57  Fed.  85,  6  CCA.  258. 

*  Worden  v.  Searls,  121  U.S.  14,  7  Sup.  Ct.  814. 

'  Worden  v.  Searls,  supra;  Bucks  Stove  &  Range  Co.  v.  American  Fed.  of 
Labor.  36  Wash.  L.  R.  822  ;  Gompera  v.  Bucks  Stove  &  Range  Co.,  221  U.S.  418, 
31  Sup.  Ct.  492 ;  A.  R.  Barnes  &  Co.  v.  Chicago  Typographical  Union,  supra. 

«  Savings  Bank  v.  City  of  Clay  Center,  219  U.S.  527,  31  Sup.  Ct.  295. 


LABOR  DISPUTES  313 

injunction   has   been   continued   during  the   pendency   of  an 
appeal. 

Labor  organizations  may  be  made  parties  to  injunction  pro- 
ceedings, whether  incorporated  or  not,^  and  the  writ  may  be 
directed  against  the  union,  its  officers  and  members,  and  other 
persons  named  in  the  bill,  if  any,  and  all  other  persons  associ- 
ated with  them  in  committing  the  acts  and  grievance  com- 
plained of.  It  is  therefore  impossible  to  evade  the  force  of  the 
writ  by  bringing  in  third  parties  to  carry  out  the  plans  of  the 
enjoined  members  of  the  union,  since  the  action  of  such  parties 
would  amount  to  a  wrongful  and  unlawful  uniting  with  the 
restrained  persons  for  the  purpose  of  thwarting  the  effect  of  the 
writ ;  and  the  fact  of  knowledge  of  the  writ  is  the  only  essential 
to  charge  liability  under  it,  regardless  of  the  omission  of  sub- 
poenas or  formal  service  of  notice.^  On  the  other  hand,  if  only 
certain  officials  or  a  limited  number  of  the  members  are  guilty 
of  the  illegal  acts  complained  of,  the  orderly  conduct  of  a  lawful 
strike  will  not  be  interfered  with  by  an  injunction  against  all 
the  members,  but  the  v/rit  will  run  only  against  those  persons 
who  have  committed  the  objectionable  acts.'  This  seems  to 
differ  somewhat  from  the  views  held  by  courts  issuing  the  so- 
called  "blanket  injunctions,"  binding  upon  persons  named  "and 

•  Loewe  v.  Cal.  State  Fed.  of  Labor,  supra;  Purvis  v.  Brotherhood,  214  Pa. 
St.  348,  63  Atl.  585;  American  Steel  &  Wire  Co.  v.  W'ire  Drawers'  Union,  supra; 
Iron  Molders'  Union  v.  Allis-Chaimers  Co.,  166  Fed.  45,  91  C.C..\.  631. 

•  In  re  Bessette,  111  Fed.  417 ;  Bessette  r.  Conkey,  194  U.S.  324,  24  Sup.  Ct. 
665.  ("Jurisdiction  [over  a  third  person]  exists  by  reason  of  the  conspiracy  to 
defeat  the  process  of  the  court,  although  such  person  is  a  stranger  to  the  suit, 
and,  by  reason  of  his  citizenship,  could  not  have  been  made  a  defendant  thereia 
[in  a  case  before  a  federal  court).") 

•  Karges  Furniture  Co.  v.  Woodworkers'  Union,  166  Ind.  421,  75  N.E.  877; 
Pope  Motor  Car  Co.  v.  Keegan,  150  Fed.  148 ;  Union  P.  R.  Co.  v.  Ruef,  supra. 


314  LAW   OF  THE   EMPLOYMENT   OF   LABOR 

upon  all  other  persons  whatsoever  who  are  not  named  therein, 
from  and  after  the  time  when  they  shall  severally  have  knowl- 
edge of  such  order  and  the  existence  of  said  injunctions."  ^ 
Apart  from  the  liability  to  pay  costs,  which  attaches  to  one 
named  in  an  injunction,  the  actual  difference  is  sentimental  and 
theoretical  rather  than  practical,  however,  as  was  set  forth  in 
one  of  the  cases  in  which  the  names  of  apparently  innocent 
defendants  were  stricken  from  the  bill,  the  court  stating  that 
inclusion  was  not  necessary  to  hold  them  to  a  strict  compli- 
ance with  the  terms  of  the  injunction  after  knowledge  thereof ;  ^ 
and  when  defendants  do  not  claim  that  the  injunction  restrains 
them  from  doing  anything  which  they  have  a  right  to  do,  or 
which  they  have  a  desire  to  do,  and  the  sole  objection  to  the 
injunction  is  that  it  is  unnecessary,  the  objection  being  urged 
because  of  the  erroneous  notion  that  the  vacation  of  the  injunc- 
tion is  a  vindication  of  the  defendants,  comparatively  slight 
evidence  of  the  usefulness  or  necessity  of  the  injunction  is  suffi- 
cient to  sustain  a  temporary  order  until  final  hearing.' 

It  has  already  been  pointed  out  that  labor  combinations  have 
been  made  the  subject  of  legislative  action  intended  to  declare 
their  status  as  lawful  and  not  subjecting  the  members  thereof 
to  indictment  as  conspirators.  A  statute  of  New  Jersey  ^  de- 
clares it  not  unlawful  for  persons  to  combine  to  persuade,  advise, 
or  encourage  by  peaceable  means  others  to  enter  into  a  combina- 
tion for  or  against  leaving  or  entering  employment.  This  seems 
to  have  been  construed  as  legalizing  private  injuries ;  ^  and  was 

1  United  States  v.  Debs,  supra. 

*  Pope  Motor  Car  Co.  ».  Keegan,  supra;  see  also  In  re  Lennon,  supra;  Boyd 
V.  State,  19  Neb.  128,  26  N.W.  925. 

»  Hall  Lace  Co.  v.  Javes.  76  N.J.  Eq.  92,  79  Atl.  439.       *  G.  S.,  p.  2344,  sec.  23. 
»  Mayer  v.  Journeymen  Stonecutters,  47  N.J.  Eq.  519,  20  Atl.  492. 


LABOR  DISPUTES  315 

held  to  permit  the  adoption  of  peaceable  measures  for  inducing 
workmen  to  quit  or  to  refuse  to  enter  employment.^  In  a  later 
case,  however,  the  court  of  errors  and  appeals  of  the  state  held 
that,  so  construed,  the  law  conflicted  with  the  state  constitution 
in  its  provisions  as  to  the  right  of  enjoying  and  defending  life 
and  liberty,  and  of  acquiring,  protecting,  and  possessing  prop- 
erty, and  that  it  could  go  no  farther  than  to  render  combina- 
tions of  the  sort  not  indictable.^  An  injunction  against  pro- 
curing violations  of  contracts,  whether  for  fixed  terms  or  at  will, 
was  sustained  in  this  case,  as  well  as  against  coercive  measures 
to  prevent  the  flow  of  labor  to  the  complainant's  works.  And 
clearly  no  law  is  constitutional  which  removes  unjustifiable  acts 
of  interference  with  employment  or  occupation  from  the  general 
control  of  the  law.  A  statute  of  California '  undertook  specifi- 
cally to  exempt  from  control  by  injunction  acts  done  in  fur- 
therance of  disputes  between  employers  and  employees.  This 
statute  was  pleaded  in  a  strike  case  involving  the  boycott  and 
picketing,  whereupon  the  court  held  that  it  could  not  be  con- 
strued as  undertaking  to  prohibit  a  court  from  enjoining  unlaw- 
ful acts,  and  if  it  could  be  so  construed,  it  was  to  that  extent  void 
as  violative  of  the  plaintiff's  rights  of  liberty  and  protection.'* 

It  is  clear  that  the  injunction  relates  to  injury  to  intangible 
rights  no  less  than  to  injury  to  physical  property.  "The  right 
to  choose  one's  calling  is  an  essential  part  of  the  liberty  which 
it  is  the  object  of  the  government  to  protect;  and  a  calling 

»  Cumberland  Glass  Mfg.  Co.  v.  Glass  Bottle  Blowers,  69  N.J.  Eq.  49,  46  Atl. 
208. 

«  George  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers,  77  N.J.  Eq.  219,  79  Atl.  262. 

»  Acts  1903,  ch.  235. 

*  Goldberg  v.  Stablemen's  Union,  149  Cal.  429,  86  Pac.  806 ;  Pierce  v.  Same, 
156  Cal.  70,  103  Pac.  324. 


316  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

when  chosen  is  one's  property  and  right."  ^  The  occupation  by 
means  of  which  a  man  earns  a  liveUhood  and  supports  those 
dependent  upon  him  is  property  within  the  meaning  of  the  law, 
and  entitled  to  protection  as  such.^  Employers  and  workmen 
are  entitled  to  free  opportunity  of  mutual  access  and  the  free 
exercise  of  choice  in  the  matter  of  making  and  carrying  out  con- 
tracts of  employment,  and  injunctions  will  issue  to  protect  such 
rights.^  These  rights  extend  no  less  to  prospective  or  mere 
possible  employees  than  to  those  already  in  service,  and  to  cus- 
tomers actual  or  possible  as  well.*  In  the  case,  Jersey  City 
Printing  Co.  v.  Cassidy,  a  doctrine  of  "probable  expectancies" 
was  proposed  as  an  underlying  principle,  the  court  suggesting 
that  it  would  probably  be  ultimately  concluded  "that  the  natu- 
ral expectancy  of  employers  in  relation  to  the  labor  market,  and 
the  natural  expectancy  of  merchants  in  respect  to  the  merchan- 
dise market,  must  be  recognized  to  the  same  extent  by  courts 
of  law  and  courts  of  equity,"  involving  freedom  in  the  labor 
market  to  employ  or  to  be  employed. 

While  injunctions  of  this  nature  usually  issue  at  the  instance 
of  the  employer,  workmen  or  groups  of  workmen  may  secure 
such  orders  against  other  workmen  or  organizations  who  are 
interfering  with  their  opportunities  for  employment.^  If  it 
appears  to  the  court,  however,  that  the  defendants  are  not 

1  Slaughter  House  Cases,  16  Wall.  (83  U.S.)  36. 

*  Gray  r.  Building  Trades  Council,  supra;  Beck  v.  Railway  Teamsters'  Prot. 
Union,  supra. 

» Jersey  City  Printing  Co.  v.  Cassidy,  supra ;  American  Steel  &  Wire  Co.  v. 
Wire  Drawers'  Union,  supra;  Union  P.  R.  Co.  v.  Ruef,  supra. 

*Beck  V.  Railway  Teamsters'  Union,  supra;  Goldberg  v.  Stablemen's  Union, 
supra;  Jersey  City  Printing  Co.  v.  Cassidy,  supra. 

•Plant  V.  Woods,  176  Mass.  492,  57  N.E.  1011;  Erdman  r.  Mitchell,  207 
Pa.  St.  79,  56  Atl.  327 ;  Pickett  v.  Walsh,  192  Mass.  572,  78  N.E.  753. 


LABOR  DISPUTES  317 

exceeding  their  rights  in  their  efforts  to  secure  labor  for  their 
own  members  and  in  the  methods  adopted,  no  injunction  will 
issue.*  Nor  can  one  union  secure  an  injunction  against  another 
to  protect  itself  against  disintegration  by  the  acts  of  the  rival 
union,  since  it  has  no  property  in  its  members,  who,  if  aggrieved, 
must  seek  redress  as  individuals,  the  court  holding  that  the 
union  as  such  could  not  bring  an  action,  even  though  the  acts 
of  the  rival  union  were  of  an  illegal  nature ;  ^  nor  has  a  union 
such  an  interest  in  the  employment  of  its  members  as  pickets 
in  a  strike  which  it  is  conducting  as  to  warrant  the  issue  of  an 
injunction  on  its  petition  to  prevent  interference  with  such  em- 
ployment, where  it  does  not  appear  either  that  the  complainants 
are  suffering  substantial  pecuniary  damage,  or  that  the  defend- 
ants are  not  financially  responsible  for  any  damages  that  may 
result.' 

On  a  suit  for  injunction  a  court  may  retain  jurisdiction  of  the 
case  in  order  to  give  such  full  relief  as  will  finally  dispose  of  the 
controversy  and  avoid  multiplicity  of  suits.^  Thus  in  consid- 
ering the  propriety  of  issuing  the  injunction,  it  may  also  con- 
sider what  damage,  if  any,  the  complainant  has  suffered  by 
reason  of  the  acts  complained  of,  and  award  such  amount  as 
seems  just;^  and  this  is  of  course  equally  true  whether  the 
complainant  is  an  employee '  or  an  employer.^ 

•  National  Protective  Ass'n.  v.  Cumming.  17  N.Y.  315,  62  N.E.  369. 
«  Silver  State  Council  v.  Rhodes,  7  Colo.  App.  211,  43  Pac.  451. 

'  Atkins  V.  Fletcher  Co.,  65  N.J.  Eq.  658,  55  Atl.  1074. 

•  Braman  r.  Foss,  204  Mass.  404,  90  N.E.  563 ;  Gormley  v.  Clark,  134  U.S. 
338,  10  Sup.  Ct.  554  ;  Bispham's  Equity,  6th  ed.,  sec.  37. 

'  Baldwin  v.  Association,  162  Mich.  703,  130N.W.214;  Purviac.  Brotherhood, 
supra. 

•  De  Minico  v.  Craig.  207  Mass.  693,  94  N.E.  317. 
'  Folsom  V.  Lewis  (Mass.),  94  N.E.  316. 


318  LAW   OF  THE  EMPLOYMENT   OF  LABOR 

There  is  little  dispute  as  to  the  propriety  of  the  issue  of  the 
injunction  in  circumstances  involving  the  conditions  set  forth 
above ;  but  there  is  wide  difference  of  opinion  as  to  when  the 
point  has  been  reached  at  which  intervention  is  proper.  This 
difficulty  is  pointed  out  in  the  matter  of  the  boycott  in  a  noted 
case  in  the  following  language :  "Courts  differ  as  to  what  con- 
stitutes a  boycott  that  may  be  enjoined.  All  hold  that  there 
must  be  a  conspiracy  causing  irreparable  damage  to  the  busi- 
ness of  property  of  the  complainant.  Some  hold  that  a  boycott 
against  the  complainant  by  a  combination  of  persons  not  im- 
mediately connected  with  him  in  business  can  be  restrained. 
Others  hold  that  the  secondary  boycott  can  be  enjoined,  where 
the  conspiracy  extends  not  only  to  injuring  the  complainant, 
but  secondarily  coerces  or  attempts  to  coerce  his  customers  to 
refrain  from  dealing  with  him  by  threats  that  unless  they  do  so 
they  themselves  will  be  boycotted.  Others  hold  that  no  boy- 
cott can  be  enjoined  unless  there  are  acts  of  physical  violence,  or 
intimidation  caused  by  threats  of  violence."  ^  It  is  settled  by 
a  strong  line  of  cases  that  the  contention  that  what  one  may 
lawfully  do  alone  many  may  do  in  concert  is  not  tenable,  so  that 
an  injunction  will  lie  to  prevent  certain  forms  of  combined 
action,  though  one  alone  doing  the  same  thing  would  not  be 
interfered  with.^  Yet  an  injunction  against  workmen  so  quit- 
ting service,  whether  with  or  without  notice,  as  to  cripple  the 
business  or  hinder  its  continuance,^  was  on  appeal  modified  so 

»  Gompers  v.  Bucks  Stove  &  Range  Co.,  221  U.S.  418,  31  Sup.  Ct.  492. 

*U.S.  V.  Kane,  23  Fed.  748;  Grenada  Lumber  Co.  v.  Mississippi.  217  U.S. 
433,  30  Sup.  Ct.  535;  Allis-Chalmers  Co.  v.  Iron  Molders'  Union,  150  Fed.  155; 
Jersey  City  Printing  Co.  v.  Cassidy,  supra;  Lohse  Patent  Door  Co.  v.  Fuelle, 
215  Mo.  21,  114S.W.  997. 

» Farmers'  L.  &  T.  Co.  v.  Northern  P.  R.  Co.,  60  Fed.  803. 


LABOR  DISPUTES  319 

as  to  omit  the  words  restraining  departure  from  service,  though 
sustaining  prohibitions  of  combinations  and  conspiracies  having 
the  object  and  intent  of  physically  injuring  the  property  or  of 
actually  interfering  with  its  regular  and  continuous  use.^  The 
line  drawn  in  some  states  by  statutes  forbidding  the  abandon- 
ment of  rolling  stock  of  railroads  at  other  than  division  points  or 
terminals  affords  a  standard  where  applicable. 

It  is  equally  difficult  to  harmonize  the  rulings  of  the  courts 
in  regard  to  persuasion.  "Persuasion,  too  emphatic,  or  too 
long  and  persistently  continued,  may  itself  become  a  nuisance, 
and  its  use  a  form  of  unlawful  coercion,"  ^  when,  of  course,  it 
would  be  enjoined;  and  it  has  been  very  recently  held  that  an 
injunction  against  inducing  or  persuading  an  employee  under 
contract  to  render  service  to  break  such  contract,  and  against 
"addressing  persons  wiUing  to  be  employed,  against  their  will, 
and  thereby  causing  them  personal  annoyance,  with  a  view  to 
persuade  them  to  refrain  from  such  employment,"  was  properly 
issued ; '  and  in  another  case  in  the  same  court  it  was  held  in 
effect  that  the  right  to  persuade  existed  only  as  to  persons  willing 
to  listen  to  the  arguments  offered,  since  only  thus  can  the  free 
flow  of  labor  and  the  exercise  of  freedom  of  choice,  unrestrained 
by  annoyance  or  coercion,  be  maintained.'*  This  consideration 
prevailed  to  sustain  the  granting  of  an  injunction  against  a  labor 
organization  to  prevent  it  from  fining  or  threatening  to  fine  its 
members  unless  they  should  withdraw  their  service  from  an 

>  Arthur  v.  Oakes,  63  Fed.  310,  11  CCA.  209. 

'  Otis  Steel  Co.  r.  Iron  Molders'  Union,  110  Fed.  698. 

•  George  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers,  72  N.J.  Eq.  653,  66  Atl. 
953 :  affirmed,  77  N.J.  Eq.  219,  79  Atl.  262. 

«  Frank  v.  Herold,  63  N.J.  Eq.  443, 52  Atl.  152  ;  see  also  Jersey  City  Printing 
Co.  V.  Cassidy,  supra;  Goldfield  Consol.  Min.  Co.  r.  Miners'  Union,  159  Fed. 
600 ;  Union  P.  R.  Co.  v.  Ruef ,  aupra. 


320  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

employer  against  whom  a  strike  had  been  declared,  the  court 
holding  that  any  other  conclusion  would  be  inconsistent  with 
the  existence  of  a  reasonably  free  labor  market,  to  which  both 
the  employer  and  the  employee  are  entitled.^ 

While  it  is  well  settled  that  a  strike,  viewed  as  a  concerted 
cessation  of  workmen  from  labor,  cannot  be  enjoined,  the  in- 
citement of  strikes  may  be  a  proper  subject  of  restraint,  as 
where  there  is  a  conspiracy  involving  interference  with  inter- 
state commerce ;  ^  and  it  was  held  in  the  case  cited  that  a 
mandatory  injunction  might  issue  against  the  head  of  such  con- 
spiracy, compelling  him  to  rescind  an  offending  order ;  and 
incitement  may  be  enjoined  if  the  strike  would  involve  the  breach 
of  contracts  of  employment;  ^  or  has  for  its  object  a  monopo- 
listic purpose,  as  by  preventing  the  employment  of  any  but 
members  of  a  labor  organization.*  This  last  is  a  much-disputed 
point,  however,^  and  the  question  is  often  decided  according 
to  the  adjudged  motives  of  the  strikers.®  Where  the  strike 
partakes  of  the  nature  of  a  boycott,  it  is  generally  held  that  acts 
tending  to  incite  it  may  be  enjoined.''  Clearly  third  persons, 
unrelated  to  the  parties  affected  by  either  employment  contracts 

» L.  D.  Wilicut  &  Sons  Co.  v.  Bricklayers,  200  Mass.  110,  85  N.E.  897 ;  and 
see  Connett  v.  Hatters,  76  N.J.  Eq.  202,  74  Atl.  188. 

«  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  730. 

» A.  R.  Barnes  &  Co.  v.  Berry,  156  Fed.  72  ;  Wabash  R.  Co.  v.  Hannahan,  121 
Fed.  563. 

*  Erdman  v.  Mitchell,  supra;  State  v.  Donaldson,  32  N.J.L.  151,  90  Am.  Dec. 
640;  Plant  v.  Woods,  supra;  Reynolds  v.  Davis,  198  Mass.  294,  84  N.E.  457; 
A.  R.  Barnes  &  Co.  v.  Berry,  156  Fed.  72. 

'  Gray  v.  Building  Trades  Council,  supra. 

•  National  Protective  Ass'n.  v.  Cumming,  supra;  State  v.  Stockford,  77  Conn. 
227,  58  Atl.  769  ;  Pickett  v.  Walsh,  supra. 

''  Purvis  V.  Brotherhood,  supra;  Schlang  v.  Ladies'  Waist  Makers'  Union,  124 
N.Y.  Supp.  289  ;  Booth  v.  Burgess,  72  N.J.  Eq.  181,  65  Atl.  226. 


LABOR  DISPUTES  321 

or  by  organization,  will  be  enjoined  from  interfering  with  con- 
tracts of  employment.^  It  has  been  pointed  out  that  the  defi- 
nitions of  the  boycott  vary,^  but  accordihg  to  what  appears  to 
be  the  more  commonly  accepted  use  of  the  word,  it  involves  acts 
of  injurious  combination,  not  justifiable  as  trade  competition, 
and  subject  to  injunction.'  Where  the  boycott  constitutes 
an  interference  with  interstate  commerce,  it  may  be  enjoined 
on  account  of  such  fact ;  *  so  also  if  it  amounts  to  a  violation  of 
the  federal  antitrust  law,^  or  obstructs  the  mails.^ 

The  subject  of  picketing  requires  but  brief  notice  here.^  The 
matter  of  issuing  injunctions  to  restrain  this  form  of  activity 
will  be  controlled  by  the  views  entertained  by  the  court  as  to  its 
lawfulness  generally  and  the  conditions  affecting  the  particular 
case.  Where  it  is  regarded  as  an  unlawful  interference  with 
business  or  employment,  it  will  be  enjoined,  and  has  been  itself 
called  an  attempt  to  enforce  an  unauthorized  injunction  by  the 
organization  engaging  therein.*  In  a  few  cases  all  picketing 
has  been  regarded  as  unlawful  and  subject  to  injunction;^  but 
the  weight  of  opinion  refuses  to  interfere  with  peaceful  picketing, 

'  United  States  v.  Haggerty,  116  Fed.  510;  Hitchman  Coal  Co.  v.  Mitchell, 
172  Fed.  963  ;  Connett  v.  Hatters,  supra. 

*  This  section  above ;  and  see  Pierce  v.  Stablemen's  Union,  156  Cal.  70,  103 
Pac.  324. 

•  See  sec.  122  ;  and  see  Lohse  Patent  Door  Co.  v.  Fuelle,  supra;  Shine  v.  Fox 
Bros.  Mfg.  Co.,  156  Fed.  357,  86  CCA.  311 ;  Purvis  v.  Brotherhood,  supra. 

*  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  supra;  In  re  Debs,  supra. 

«  Loewe  v.  Lawlor,  208  U.S.  274.  28  Sup.  Ct.  301 ;  United  Statea  v.  Working- 
men's  Amal.  Council,  54  Fed.  994. 

•  In  re  Debs,  supra. 
^Sce  sec.  121. 

'Otis  Steel  Co.  v.  Iron  Molders'  Union,  110  Fed.  698;  and  see  Sherry  v. 
Perkins,  supra;   Union  P.  R.  Co.  v.  Ruef,  supra. 

•Atchison,  etc.,  R.  Co.  v.  Gee,  139  Fed.  582;  A.  R.  Barnes  <fe  Co.  r.  Typo- 
graphical Union.  232  III.  424,  83  N.E.  940. 


322  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

which  does  not  intimidate  from  force  of  numbers  or  other  cause, 
and  is  merely  to  gain  information  or  to  effect  peaceful  persua- 
sion.^ It  was  said  in  a  recent  case,  however,  that  picketing, 
"in  its  mildest  form,  is  a  nuisance;  and  to  compel  a  manu- 
facturer to  have  the  natural  flow  of  labor  to  his  employment 
sifted  by  a  self-constituted,  antagonistic  committee,  whose  very 
presence  upon  the  highway  for  such  purpose  is  deterrent,  is  just 
as  destructive  of  his  property  as  is  a  boycott  which  prevents  the 
sale  of  his  product."  ^  In  this  case  a  boycott  had  been  pre- 
viously declared  unlawful,  and  an  injunction  had  been  granted 
against  threats,  intimidation,  or  coercion  with  a  view  to  pre- 
venting workmen  from  accepting  employment  with  the  plaintiff 
company.  In  the  present  instance  an  injunction  was  allowed 
restraining  the  defendant  association  and  its  officers  from  per- 
suading or  inducing  persons  or  corporations  not  to  deal  with 
the  company  because  it  employed  nonunion  workmen.  This 
is  farther  than  injunctions  usually  go,  but  the  court  regarded  the 
union  as  acting  with  no  motive  for  interfering  with  the  complain- 
ant beyond  the  avowed  purpose  of  destroying  it.  "The  result 
which  they  seek  to  obtain  cannot  come  directly  from  anything 
they  do  within  the  regular  line  of  their  business  as  workers  com- 
peting in  the  labor  market.  It  can  only  come  from  action  out- 
side of  the  province  of  workingmen,  intended  directly  to  injure 
another."^ 

*  Karges  Furniture  Co.  v.  Woodworkers'  Union,  supra;  St.  Louis  v.  doner, 
210  Mo.  502,  109  S.W.  30;  Cumberland  Glass  Co.  v.  Glass  Bottle  Blowers, 
supra;  Pope  Motor  Car  Co.  v.  Keegan,  supra;  Iron  Molders'  Union  v.  Allis- 
Chalmers  Co.,  166  Fed.  45,  91  CCA.  631. 

*  George  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers,  72  N.J.  Eq.  653, 66  Atl.  953  ; 
affirmed,  77  N.J.  Eq.  219,  79  Atl.  262. 

'  Berry  v.  Donovan,  188  Mass.  353,  74  N.E.  603 ;  and  see  Hopkins  r.  Oxley 
Stave  Co.,  83  Fed.  912,  28  CCA.  99  ;  Shine  v.  Fox  Bros.,  supra. 


LABOR  DISPUTES  323 

The  fact  that  offensive  boycotting  or  picketing  followed  a 
strike  that  was  in  itself  legal  in  no  wise  affects  the  issue  of  an 
injunction  restraining  the  offending  acts.^ 

Section  127.  Contemyts.  —  The  willful  violation  or  disregard 
of  an  injunctive  order  is  a  contempt  of  the  court  issuing  it,  and 
is  liable  to  punishment  as  such.  The  power  to  enforce  the  pen- 
alty is  inherent  in  all  courts,  and  is  essential  to  the  enforcement 
of  their  orders  and  the  due  administration  of  justice.^  Without 
it  they  would  be  "mere  boards  of  arbitration  whose  judgments 
and  decrees  would  be  only  advisory."  ^  The  right  to  punish 
contempts  belongs  exclusively  to  the  court  against  which  the 
offense  was  committed,  since  in  order  to  the  securing  of  obedience 
to  its  orders,  a  court  must  have  the  right  to  inquire  whether 
they  have  been  disobeyed,  and  to  submit  this  question  to  an- 
other tribunal  would  deprive  the  proceeding  of  half  its  efficiency.* 
This  view  extends  to  the  trial  of  contempts  by  jury,  the  alleged 
right  to  such  trial  being  denied.^  Judgments  of  contempt  may 
be  taken  for  review  to  a  superior  court,®  such  proceeding,  in  the 
absence  of  special  statutes,  being  governed  by  the  statutes 
generally  applicable  to  the  review  of  judgments. 

Contempts  are  classed  as  direct,  or  those  committed  in  the 

»  Sailors'  Union  v.  Hammond  Lumber  Co.,  156  Fed.  450,  85  CCA.  16 ;  M. 
Steinert  &  Sons  v.  Tagen,  207  Mass.  394,  93  N.E.  584. 

» Ex  parte  Robinson,  19  Wall.  (86  U.S.)  505 ;  Bessette  v.  Conkey.  194  U.S. 
324,  24  Sup.  Ct.  065. 

«  Gompers  r.  Bucks  Stove  &  Range  Co.,  221  U.S.  418,  31  Sup.  Ct.  492. 

*  In  re  Debs,  158  U.S.  564,  15  Sup.  Ct.  900. 

»/n  re  Debs,  supra;  Eilenbccker  r.  Plymouth  Co.,  134  U.S.  31,  10  Sup.  Ct. 
424;  O'Brien  v.  People,  216  111.  354,  75  N.E.  108;  Thomas  v.  Cincinnati,  etc., 
R.  Co.,  62  Fed.  803. 

•  Gompers  p.  Bucks  Stove  &  Range  Co.,  37  Wash.  L.  R.  706,  33  App.  D.  C 
616;  Same  case,  221  U.S.  418,  31  Sup.  Ct.  492;  ex  parte  Terry.  128  U.S.  289, 
9  Sup.  Ct.  77. 


324  LAW  OF  THE   EMPLOYMENT   OF  LABOR 

presence  of  the  court;  and  constructive  or  indirect,  by  which 
are  meant  acts  of  disobedience  or  disregard  of  its  orders  or  writs 
elsewhere  than  its  immediate  presence.  Obviously  contempts 
in  labor  disputes  will  be  mainly  of  the  latter  class.  Various 
attempts  have  been  made  at  legislative  restriction  of  the  power 
of  the  courts  to  punish  for  contempts,  and  some  laws  of  this 
intent  have  been  enacted.  These  laws  may  provide  for  jury 
trial  in  cases  of  indirect  contempt,^  or  limit  the  penalty  that 
may  be  inflicted  by  the  court.^  All  the  statutes  cited  were 
declared  unconstitutional  by  the  courts  of  the  respective  states 
as  being  unwarranted  interferences  by  the  legislative  branch  of 
the  government  with  the  inherent  rights  and  powers  of  a  coor- 
dinate branch ;  ^  and  it  has  been  broadly  laid  down  that  the 
power  to  protect  itself  from  contempt,  and  also  to  determine 
what  is  a  contempt,  is  inherent  in  every  court  of  superior  juris- 
diction, and  that  it  is  not  within  the  power  of  the  legislature  to 
prevent  the  one  or  abridge  the  other.^  It  was  said  in  a  case 
involving  a  statute  of  the  state  of  Georgia,  that  a  provision  of 
the  constitution  to  the  effect  that  the  power  of  the  courts  to 
punish  for  contempts  shall  be  limited  by  legislative  acts  does 
not  confer  authority  on  the  legislature  to  define  contempts  and 
restrict  the  jurisdiction  of  a  superior  court,  created  by  the  con- 
stitution, to  those  acts  only  which  are'specified.     Thus  a  statute 

1  Okla.,  Acts  1895,  ch.  13  ;  Va..  Acts  1897-8,  p.  648. 

'  Mo.,  R.S.,  sec.  3882  ;   Okla.,  Acts  1895,  ch.  13. 

'  State  V.  Shepherd,ll77  Mo.  234, 76  S.W.  88  ;  Smith  v.  Speed,  11  Okla.  95, 66 
Pac.  511 ;  Carter's  Case,  96  Va.  805,  32  S.E.  780 ;  Chicago,  etc.,  R.  Co.  v.  Gilder- 
sleeve,  219  Mo.  170,  118  S.W.  86;  Burdett  v.  Commonwealth,  103  Va.  838,  48 
S.E.  878. 

<Cheadle  v.  State,  110  Ind.  301,  11  N.E.  426;  and  see  O'Brien  v.  People, 
supra;  Ford  v.  State,  69  Ark.  550,64  S.W.  879;  Anderson  v.  Drop  Forging  Co., 
34  Ind.  App.  100,  72  N.E.  277. 


LABOR  DISPUTES  325 

providing  that  the  power  of  a  court  to  punish  for  contempt  shall 
not  extend  to  any  cases  except  misbehavior  in  or  so  near  the 
court  as  to  obstruct  justice,  or  misbehavior  of  an  officer  of  the 
court  in  official  transactions,  or  disobedience  of  a  lawful  writ, 
order,  or  process  of  the  court  ^  is  not  binding  on  a  constitutional 
court,  and  it  may,  in  order  to  preserve  its  constitutional  powers, 
treat  as  contempts  acts  which  clearly  invade  them,  since  the 
power  to  punish  contempts  is  inherent  in  every  court  of  record.* 
A  statute  of  Kentucky,  however,  limiting  penalties  unless  a  jury 
trial  is  granted,^  was  referred  to  in  a  case  before  the  supreme 
court  of  that  state  as  controlling  in  a  possible  case ;  *  and 
statutes  regulating  procedure  are  doubtless  valid.^ 

The  violation  of  an  injunction  may  be  passive  as  well  as  active, 
as  where  the  officers  of  a  labor  organization  fail  to  use  reasonable 
efforts  to  secure  from  members  of  their  unions  obedience  to  the 
injunctive  order,  if  such  failure  is  apparently  colored  by  bad 
faith."  Nor  is  an  injunction  a  necessary  condition  precedent 
to  the  commission  of  acts  of  contempt,  since  in  cases  of  receiver- 
ships the  mere  fact  that  the  property  is  in  the  hands  of  the  courts 
makes  interference  with  the  receivers  in  the  performance  of  their 
duties  as  officers  of  the  courts  contempt  of  court.  ^     Where  em- 

>  Ga.,  Civ.  Code,  sec.  4046. 

'  Bradley  v.  State,  111  Ga.  168,  36  S.E.  630 ;  see  also  Hale  v.  State,  55  Ohio 
St.  210,  45  N.E.  199  ;  ex  parte  McCown.  139  N.C.  95,  51  S.E.  957. 

»  Ky.  Stat.,  sec.  1291.  *  Underbill  v.  Murphy,  117  Ky.  640,  78  S.W.  482. 

»N.Y.,  C.L..  ch.  30,  sees.  750-781;  see  People  v.  Dwyer,  90  N.Y.  402; 
People  V.  Court,  101  N.Y.  245;  Wis..  A.S.,  sees.  3477-3497;  see  Emerson  v. 
Huss,  127  Wis.  215,  106  N.W.  518;  Vilter  Mfg.  Co.  r.  Humphrey,  132  Wis.  587. 
112  N.W.  1095. 

*In  re  McCormirk,  117  N.Y.  Supp.  70;  and  see  Allis-Chalmers  Co.  r.  Iron 
Molders'  Union.  150  Fed.  155. 

^  Davis  V.  Gray,  16  Wall.  (83  U.S.)  203 ;  Thomas  v.  Cincinnati,  etc.,  R.  Co.. 
eupra;  In  re  Doolittle,  23  Fed.  544. 


326  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

ployees  of  a  company  that  is  in  the  hands  of  a  receiver  appointed 
by  a  court  are  dissatisfied  with  the  wages  paid  by  him,  they  may 
abandon  the  employment,  and  by  argument  or  persuasion  in- 
duce others  to  do  the  same ;  ^  but  if  they  resort  to  threats  or 
violence  to  induce  the  others  to  leave,  or  accomplish  their  purpose 
without  violence  by  overawing  the  others  by  preconcerted  dem- 
onstrations of  force,  and  thus  prevent  the  receiver  fi:om  carry- 
ing on  the  business,  they  are  guilty  of  contempt.^  And  it  has 
been  held  that  strikers  who  were  employees  of  a  railroad  not  in 
the  hands  of  a  receiver  are  guilty  of  a  contempt,  even  though 
intending  none,  if  by  unlawfully  obstructing  the  operation  of 
the  road  of  their  employer,  not  by  merely  quitting  work,  which 
is  lawful,  but  by  preventing  the  owners  of  the  road  from  manag- 
ing their  own  engines  and  running  their  own  cars,  they  thus 
interfere  with  the  operation  of  the  road  which  is  in  the  receivers' 
hands.^ 

It  will  be  found  in  the  great  majority  of  cases,  however,  that 
contempt  is  held  to  consist  in  the  known  violation  of  specific 
orders,  issued  by  the  courts  at  the  instance  of  an  aggrieved  party, 
and  that  proof  of  the  specific  act  will  be  necessary  to  determine 
guilt;  though  incitement  to  violations,  if  manifestly  of  that 
intent,  as  by  speaking  shghtingly  or  defiantly  of  the  court  and 
its  order,  will  also  be  regarded  as  contempt.'*  What  is  a  con- 
tempt will,  therefore,  be  a  matter  of  fact  to  be  determined  by  the 
circumstances  in  each  case.     An  act  lawful  in  itself  may  by  its 

*  United  States  v.  Kane,  23  Fed.  748  ;  In  re  Doolittle,  supra;  Arthur  v.  Oakea, 
63  Fed.  310,  11  CCA.  1209. 

*  United  States  v.  Kane,  supra;  In  re  Higgins,  27  Fed.  443 ;  United  States  v. 
Weber,  1 14  Fed.  950.  '  In  re  Doolittle,  supra. 

*  Gompers  v.  Bucks  Stove  &  Range  Co.,  37  Wash.  L.  R.  706,  33  App.  D.C 
616 ;  United  States  v.  Haggerty,  116  Fed.  610. 


LABOR  DISPUTES  327 

relations  become  wrongful ;  as  where  one  labor  organization  is 
forbidden  to  interfere  with  the  members  of  another  in  their 
employment,  and  its  officers  levy  fines  against  their  own  mem- 
bers to  compel  them  to  cease  work  in  such  a  manner  as  to  lead 
to  the  discharge  of  the  members  of  the  complaining  union. 
"The  fact  that  such  fine  imposed  upon  its  own  members  might 
be  entirely  lawful  and  just,  when  so  imposed  for  a  lawful  purpose, 
cannot  justify  its  infliction  for  a  wrongful  purpose  in  violation 
of  a  restraining  order  of  a  court."  ^  The  use  of  the  highways, 
while  in  itself  lawful,  may  be  so  practiced  as  to  interfere  un- 
justifiably with  the  tantamount  right  of  others  whose  freedom 
the  injunction  was  designed  to  protect,  and  so  become  a  con- 
tempt.2 

While  the  courts  are  not  entirely  agreed  on  the  point,  it 
is  said  by  the  Supreme  Court  that,  where  a  boycott  has  been 
enjoined,  "the  strong  current  of  authority  is  that  the  pubUca- 
tion  and  use  of  letters,  circulars,  and  printed  matter  may  consti- 
tute a  means  whereby  a  boycott  is  unlawfully  continued,  and 
their  use  for  such  purpose  may  amount  to  a  violation  of  the 
order  of  injunction."  ^  It  was  said  that  the  question  involved 
was  not  one  of  freedom  of  speech,  but  the  power  of  a  court  of 
equity  to  enjoin  the  continuance  of  "a  boycott  which,  by  words 
and  signals,  printed  or  spoken,  caused  or  threatened  irreparable 
damage."  Where  a  boycott  has  been  enjoined  and  the  atten- 
tion of  the  public  is  subsequently  directed  to  the  fact  that  the 
plaintiff  is  still  regarded  as  unfair  by  the  organization  against 
which  the  injunction  ran,  it  is  clear  that  contempt  has  been 

*  Chicago  Federation  of  Musicians  ».  Musicians'  Union,  139  III.  App.  65. 

»  Mackall  r.  Ratchford,  82  Fed.  41 ;  Ideal  Mfg.  Co.  r.  Ludwig.  149  Mich.  133, 
112  N.W.  723. 

•  Gompcrs  v.  Bucks  Stove  A  Range  Co.,  221  U.S.  418.  31  Sup.  Ct.  492. 


328  LAW  OF  THE   EMPLOYMENT  OF  LABOR 

committed ;  ^  and  the  use  of  the  device  of  publishing  a  list  of 
dealers  or  persons  in  good  standing  with  the  organization, 
coupled  with  a  statement  that  only  material  from  fair  firms 
would  be  worked  by  union  labor,  will  not  avoid  conviction  for 
contempt,  even  though  the  union  professes  readiness  to  explain 
to  dealers  that,  owing  to  the  existence  of  the  injunction,  material 
from  the  plaintiff's  shop  will  be  worked  despite  the  omission  of 
his  name  from  the  approved  list.^  One  refusing  to  carry  out  a 
court's  order  to  a  railroad  to  supply  equal  facilities  to  all  for  the 
interchange  of  interstate  commerce  is  guilty  of  contempt,  though 
he  might  have  left  service  with  impunity.' 

From  what  was  said  in  the  foregoing  section  as  to  the  binding 
effect  of  injunctions  on  persons  not  parties  to  the  original  bill, 
it  follows  that  such  persons  are  liable  for  contempt  committed 
in  violation  of  the  injunctive  order ;^  and  this  is  true  even 
though  the  party  might,  on  account  of  citizenship,  have  been 
precluded  from  the  possibility  of  being  made  a  party  to  the 
original  bill.^  Otherwise  no  possible  relief  could  be  afforded  a 
plaintiff  by  way  of  any  other  than  the  most  inclusive  "blanket 
injunction,"  and  the  courts  would  be  powerless  to  maintain  their 
effectiveness  or  dignity. 

The  punishment  for  contempt  is  by  fine  or  imprisonment,  or 
both,  and  is  administered  in  the  discretion  of  the  court.  Where 
damages  are  assessed,  they  will  of  course  be  adjusted  to  the 

»  Gompers  v.  Bucks  Stove  &  Range  Co.,  37  Wash.  L.  R.  706,  33  App.  D.C.  516 ; 
Patterson  v.  Building  Trades  Council,  14  Pa.  Dist.  Rep.  843. 

«  Huttig  Sash  &  Door  Co.  v.  Fuelle,  143  Fed.  363. 

» Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  746 ;  In  re  Lennon,  166 
U.S.  548,  17  Sup.  Ct.  658. 

« In  re  Lennon,  supra;  Conkey  v.  Rusaell,  111  Fed.  417. 

»  Conkey  v.  Russell,  supra. 


LABOR  DISPUTES  329 

injury  done.  A  corporation^  or  a  voluntary  association ^ 
may  be  adjudged  guilty  of  contempt  and  fined,  their  nature 
forbidding  imprisonment,  though  responsible  members  of  an 
unincorporated  union  may  be  committed  to  prison  until  a  fine 
assessed  against  it  is  paid,  this  liabiUty  being  based  on  the  part- 
nership relation  of  the  members  of  a  voluntary  association,  in  the 
view  held  by  the  court.^  Persons  carrying  out  the  mandates  of 
an  organization  and  thereby  violating  an  injunction  cannot 
offer  the  defense  of  agency,  but  are  themselves  guilty  of  con- 
tempt if  they  were  aware  of  the  existence  of  the  order/ 

Contempts  are  classed  as  civil  or  criminal  as  the  proceedings 
contemplate  chiefly  the  relief  and  benefit  of  the  complainant 
who  is  injured  by  a  noncompliance  of  the  defendant  with  the 
injunctive  order,  or  the  punishment  of  the  guilty  person  as  a 
vindication  of  the  authority  of  the  court.  The  fine  between 
the  two  classes  is  not  always  easy  to  draw,  since  a  single  pro- 
ceeding may  partake  of  the  characteristics  of  both.^  Punish- 
ment by  imprisonment  may  be  remedial  as  well  as  punitive,  and 
civil  contempt  proceedings  frequently  result  not  only  in  the  im- 
position of  a  fine  payable  to  the  complainant,  but  also  in  com- 
mitting the  defendant  to  prison.  But  imprisonment  for  civil 
contempt  is  coercive,  to  secure  the  performance  of  the  order  of 
the  court  in  behalf  of  the  complainant,  and  release  will  follow 
compliance ;    whereas  the  penalty  in  a  criminal  procedure  is 

*  Chicago  TypothetsB  v.  Franklin  Union,  36  Chi.  Legal  News  18 ;  affirmed, 
Franklin  Union  v.  People.  220  III.  355,  77  N.E.  176. 

*  A.  R.  Barnes  &  Co.  v.  Chicago  Typographical  Union.  232  111.  402.  83  N.E. 
932 ;  Patterson  v.  District  Council,  31  Pa.  Sup.  Ct.  112. 

»  Patterson  v.  District  Council,  supra. 

*  In  re  Bessette.  Ill  Fed.  417  ;  Gatzow  t».  Buening.  106  Wis.  1. 81  N.W.  1003. 
»  Bessette  r.  Conkcy.  supra:    O'Brien  r.  People,  supra;    Vilter  Mfg.  Co.  p. 

Humphrey,  supra. 


330  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

punishment  for  a  completed  act  of  disobedience,  and  imprison- 
ment in  such  a  case  would  be  for  a  de^nite  term.'  The  mixed 
nature  of  the  proceedings  is  manifest  from  the  fact  that  the 
performance  of  the  court's  order  to  compensate  the  complain- 
ant is  a  vindication  of  its  authority ;  while  the  complainant  is 
also  indirectly  benefited  by  the  effect  of  a  criminal  punishment 
to  prevent  a  repetition  of  the  disobedience;  though  such  in- 
direct result  cannot  operate  to  convert  a  criminal  contempt 
into  a  civil  one,'^  An  order  of  a  court  assessing  a  fine  for  con- 
tempt and  directing  that  the  fine  be  paid  over  to  the  original 
complainant  was  on  appeal  modified  in  respect  of  the  disposition 
to  be  made  of  the  fine,  the  court  saying  that  there  was  no  statute 
in  the  state  authorizing  the  appropriation  of  a  fine  imposed  for 
contempt  of  court  to  the  party  injured  by  the  act  constituting 
the  contempt.^  The  distinction  between  a  refusal  to  do  an  act 
commanded  for  the  benefit  of  the  complainant,  and  the  doing 
of  an  act  forbidden,  affords  a  basis  for  classifying  contempts  as 
civil  or  criminal.  In  the  former  case  the  original  complainant 
is  a  party;  in  the  latter,  only  the  state.  In  the  former  the  rules 
of  evidence  and  procedure  will  be  civil ;  in  the  latter,  criminal, 
involving  substantial  differences  in  the  rights  and  constitutional 
privileges  of  the  defendants ;  and  one  improperly  sentenced  or 
held  for  the  payment  of  damages  to  a  complainant  on  account 
of  the  violation  of  an  injunction  may  on  appeal  be  absolved  from 
that  obligation  and  yet  be  guilty  of  contempt  of  court  and 
liable  to  punishment  criminally.* 

1  Gompers  v.  Bucks  Stove  &  Range  Co.,  22rU.S.  418,  31  Sup.  Ct.  492. 

*  Gompers  v.  Bucks  Stove  &  Range  Co.,  supra. 

*  A.  R.  Barnes  &  Co.  v.  Chicago  Typographical  Union,  supra. 

*  Gompers  v.  Bucks  Stove  &  Range  Co.,  221  U.S.  418,  31  Sup.  Ct.  492  ;  Wor^ 
den  r.  Searls,  121  U.S.  14. 


LABOR  DISPUTES  331 

An  injunction  against  interference  with  the  mails  or  interstate 
commerce,  or  with  private  business,  may  be  violated  by  the 
commission  of  criminal  acts.  These  are  of  course  punishable  as 
contempts,  since  they  are  acts  of  disobedience  to  the  orders  of 
the  court,  but  are  none  the  less  indictable  as  crimes,  whether 
the  contempt  was  civil  or  criminal.^  "A  court  enforcing  obedi- 
ence to  its  orders  by  proceedings  for  contempt  is  not  executing 
the  criminal  laws  of  the  land,  but  only  securing  to  suitors  the 
rights  which  it  has  adjudged  them  entitled  to."  ^ 

Section  128.  Mediation  and  Arbitration.  —  In  the  matter  of 
the  adjustment  of  labor  disputes,  it  is  obvious  that,  as  in  any 
other  class  of  disputes,  the  parties  may  agree  to  terms  of  settle- 
ment suggested  by  friendly  intervenors,  or  may  agree  to  refer 
the  question  in  dispute  to  a  person  or  committee  chosen  for  the 
purpose.  No  question  of  enforcement  or  of  legal  construction 
could  well  arise  under  such  circumstances,  since  adjustments  of 
this  sort  take  form  and  effect  entirely  from  the  mutual  agree- 
ment of  the  parties  in  interest.  As  favoring  the  peaceful  settle- 
ment of  labor  disputes  in  lieu  of  resort  to  strikes  and  lockouts, 
laws  have  been  enacted  in  more  than  one-half  of  the  states  of 
the  Union,  and  by  Congress,  providing  for  the  formation  of 
boards  or  tribunals  for  the  adjustment  of  cases  submitted  to 
them.  Submission  may  be  made  on  the  motion  of  the  parties, 
or  of  either  of  them,  as  the  law  may  provide  ;  while  in  some  in- 
stances intervention  is  authorized  on  the  initiative  of  the  board 
or  of  a  local  municipal  officer.  The  duty  of  preliminary  inquiry 
and  of  making  efforts  at  mediation  may  devolve  under  the 
statute  on  the  commissioner  of  labor  of  the  state,  either  on  his 
own  initiative  or  by  request. 

•  N.Y.,  C.L.,  ch.  30.  sec.  776.  •  In  re  Debs,  supra. 


332  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

The  law  may  provide  for  a  state  board/  or  for  local  boards,' 
or  for  both  state  and  local  boards.^  Where  the  latter  provision 
exists,  the  local  boards  may  be  authorized  to  ask  for  advice  and 
assistance  from  the  state  boards,*  or  they  may  be  independent 
and  have  full  powers  of  action.^  The  methods  of  constituting 
the  boards  vary,  though  it  is  usually  provided  that  their  mem- 
bership shall  represent  both  employers  and  employed.  State 
boards  are  commonly  appointed  by  the  governors,  while  local  or 
special  boards  may  be  selected  by  the  court  or  judge  having  jur- 
isdiction in  the  locality,  or  the  members  may  be  chosen  one  by 
the  employer,  one  by  the  workmen,  and  a  third  by  the  first  two. 
If  the  dispute  is  one  involving  the  membership  or  interests  of 
a  labor  organization,  such  organization  may,  according  to  the 
provisions  of  a  number  of  statutes,  have  representation  on  the 
board. 

Mediation  is  the  attempt  to  procure  an  agreement  between  the 
parties  by  such  mutual  concessions  as  consideration  and  advice 
may  result  in.  It  is  made  the  duty  of  nearly  all  the  state  boards 
to  attempt  mediation  when  information  is  received  of  actual  or 
threatened  difficulties.  Arbitration  involves  a  hearing  of  the 
parties  and  an  award  based  on  the  apparent  equities  of  the  case. 
This  will  not  be  usually  undertaken  except  on  the  request  of  the 
parties  or  of  one  of  them,  and  is  binding  only  as  assented  to  by 
both  parties  in  the  application  or  consent  for  submission.  Ap- 
plicants are  obligated  to  maintain  unchanged  the  status  of  em- 

»  Cal.,  Acts  1891,  ch.  51 ;  Conn.,  G.S.,  sees.  4708-4713 ;  111.,  R.S.,  ch.  10, 
sees.  19-26 ;  Mass.,  Acts  1909,  ch.  514,  sees.  10-16 ;  Minn.,  R.L.,  sees.  1828- 
1834  ;  N.Y.,  C.L.,  ch.  31,  sees.  140-148;  Ohio,  Gen.  Code,  sees.  1059-1079. 

*  Kans.,  G.S.,  sees.  332-341 ;  Md.,  Pub.  G.  L.,  Art.  7,  sees.  1-6,  Acts  1904, 
ch.  313  ;  Pa.,  B.P.  Dig.,  p.  132,  sees.  68,  67-70. 

*  Cal.,  Mass.,  Minn.,  N.Y.,  etc. 

*  Mass.,  Ohio.  »  Minn.,  N.Y. 


LABOR  DISPUTES  333 

ployment  conditions  until  the  determination  of  the  board  can  be 
reached.  Provision  is  made  in  most  instances  for  the  attendance 
of  witnesses  to  be  enforced  by  subpoenas,  and  one  or  all  the 
members  of  the  boards  are  authorized  to  administer  oaths  in 
respect  of  the  matters  connected  with  the  performance  of  their 
duties.  It  is  provided  in  some  statutes  that  persons  disobeying 
the  subpoenas  or  refusing  to  answer  the  questions  propounded 
by  the  board  shall  be  certified  to  a  court  of  the  county  or  district 
and  punished  for  contempt.  In  this  connection  may  be  noted 
a  decision  of  the  supreme  court  of  Missouri  ^  declaring  this 
provision  of  the  statute  of  that  state  unconstitutional  and  void, 
since  the  court  has  no  power  to  exercise  such  a  prerogative  ex- 
cept in  administering  justice  in  cases  before  it  in  its  own  juris- 
diction, and  cannot  so  act  in  behalf  of  any  other  body  or  tribunal, 
even  another  court.  The  court  did  not  dispute,  however,  the 
power  of  the  legislature  to  make  a  refusal  to  testify  a  misde- 
meanor, punishable  by  fine  and  imprisonment  by  a  court  of 
competent  jurisdiction.'* 

The  methods  proposed  for  enforcing  obedience  to  awards  by 
the  boards  are  various.  Some  statutes  depend  upon  publicity 
alone,  though  in  others  they  undertake  to  give  the  decisions  the 
effect  of  a  judgment  of  a  court  of  law,  to  be  enforced  by  execu- 
tion; while  in  others,  disobedience  is  made  punishable  as  for 
contempt  of  court.  It  is  to  be  borne  in  mind  that  these  pro- 
visions apply  only  when  there  has  been  an  agreement  to  submit 
the  question  and  to  abide  by  the  awards  of  the  boards,  there 
being  no  statute  that  provides  for  actual  compulsory  arbitra- 

»  state  V.  Ryan.  182  Mo.  349.  81  S.W.  435. 

*  See  Interstate  Commerce  Commiaaion  t>.  Brimson,  154  U.S.  447,  15  Sup.  Ct. 
19.  as  to  the  power  of  a  commission  to  call  on  a  court  to  use  its  powers  to  secure 
the  giving  of  testimony. 


334  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

tion  and  the  acceptance  of  awards.  But  even  so,  the  power  of 
a  court  to  take  over  and  enforce  the  findings  of  such  a  tribunal, 
whether  this  enforcement  is  to  be  by  means  of  contempt  pro- 
ceedings or  otherwise,  is  of  at  least  doubtful  feasibility  under 
the  controlling  provisions  of  the  constitutions  of  the  various 
states  and  of  the  United  States. 

An  instance  of  an  attempt  to  combine  functions  appears  in  a 
statute  of  Kansas,^  which  undertook  to  establish  a  "court  of 
visitation,"  with  jurisdiction  over  the  operations  of  railroads. 
This  court  was  to  have  power  to  make  and  enforce  orders  to  the 
extent  of  appointing  a  receiver  for  any  road  not  complying 
therewith.  It  was  also  authorized  to  issue  orders  and  compel 
obedience  thereto  in  cases  of  disputes  affecting  railroad  em- 
ployees. This  law  was  declared  unconstitutional  by  both  state 
and  federal  courts  as  being  an  attempt  to  confer  on  a  single 
body  legislative,  administrative,  and  judicial  powers,  contrary 
to  the  provisions  of  the  constitution.^ 

The  costs  of  hearing  before  these  boards  are  usually  to  be  met 
by  the  state,  though  in  some  States  the  parties  having  recourse 
to  the  boards,  or  in  whose  behalf  they  are  formed,  are  charged 
with  the  costs,  their  apportionment  being  a  part  of  the  award 
which  it  is  the  duty  of  the  board  to  make. 

From  the  nature  of  the  tribunals  and  the  objects  for  which  they 
are  created,  it  is  natural  that  there  should  have  been  but  little 
judicial  consideration  given  to  the  laws  establishing  them  or  to  the 
operations  of  the  boards  themselves.     The  statute  of  Michigan ' 

1  Acts  1898-9,  ch.  28. 

« State  V.  Johnston,  61  Kans.  803,  60  Pac.  1068;  Western  Union  Tel.  Co.  p 
Myatt,  90  Fed.  335. 

»  C.L.,  sees.  559-568,  as  amended  by  act  No.  69,  Acts  1903  ;  repealed  May  1, 
1911. 


LABOR  DISPUTES  335 

provided  for  a  state  board  appointed  by  the  governor.  Each 
arbitrator  could  administer  oaths,  and  the  secretary,  not  a  mem- 
ber of  the  board,  might,  under  the  direction  of  the  court,  sub- 
poena witnesses,  administer  oaths,  and  compel  the  production 
of  books,  papers,  and  documents,  the  same  as  courts  of  record. 
The  constitution  of  the  state  provides  that  "the  legislature 
may  establish  courts  of  concihation  with  such  powers  and 
duties  as  shall  be  prescribed  by  law."  No  provision  was  made 
for  the  enforcement  of  awards,  and  the  submission  of  disputes 
was  of  course  voluntary.  In  a  case '  in  which  the  constitutional- 
ity of  the  statute  was  challenged,  it  was  upheld  by  the  supreme 
court  of  the  state.  As  the  case  was  presented  it  involved  the 
validity  of  an  order  for  a  rehearing,  one  of  the  parties  to  an 
arbitration  having  secured  such  an  order  because  of  dissatis- 
faction with  the  award.  The  court  held  that  the  law  gave  the 
board  no  power  beyond  that  of  rendering  and  filing  a  decision, 
and  that  in  granting  a  rehearing  it  had  exceeded  its  authority. 
In  another  case  ^  involving  the  same  law,  where  there  had  been 
a  submission  under  an  agreement  to  abide  by  the  decision  reached 
in  reference  to  prices,  it  was  contended  by  one  of  the  parties 
that  an  award  substituting  piece  rates  for  wages  by  the  day 
exceeded  the  authority  of  the  board  under  the  terms  of  sub- 
mission. The  supreme  court  held  that  if  the  board  had  in  fact 
exceeded  the  terms  of  submission,  the  contention  would  be  a 
valid  one,  but  since  the  question  was  one  of  prices,  and  evidence 
as  to  both  time  and  piece  rates  had  been  heard  ^\^thout  objec- 
tion, the  court  had  not  exceeded  its  powers.  Another  point  in 
question  was  the  construction  to  be  put  on  a  proviso  to  the 

»  Renaud  r.  State  Court  of  Mediation,  etc..  124  Mich.  648,  83  N.W.  620. 
»  Pingree  v.  State  Court  of  Mediation,  etc.,  130  Mich.  229,  89  N.W.  943. 


336  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

effect  that  decisions  should  be  rendered  within  ten  days  after  the 
hearing.  The  supreme  court  construed  this  as  directory  only, 
and  not  mandatory,  and  a  delay  of  twelve  days  additional  was 
held,  in  the  circumstances,  not  to  invalidate  the  award. 

The  statute  of  Louisiana  ^  was  enacted  under  the  authority 
granted  to  the  legislature  by  the  constitution  "to  pass  such  laws 
as  may  be  proper  and  necessary  to  decide  differences  by  arbitra- 
tion." It  provides  for  efforts  at  conciliation  in  cases  of  labor 
disputes  on  the  application  of  the  parties,  or  either  of  them, 
or  of  the  mayor  of  a  city  or  of  the  judge  of  a  district  court.  No 
provision  is  made  for  the  enforcement  of  any  finding  of  the 
board,  but  if  its  efforts  at  mediation  fail,  its  conclusions  are  to  be 
recorded  on  its  books  and  also  at  once  made  public.  In  a  case  ^ 
in  which  a  request  for  intervention  had  been  made  by  an  as- 
sociation claiming  to  represent  the  employees  of  a  street  railway 
company  (which  claim  the  company  denied),  the  company 
refused  to  join  in  the  request,  and  asked  for  an  injunction  to 
restrain  the  board  from  making  any  decision,  on  the  ground  that 
such  action  would  cause  trouble  and  dissension  among  its  em- 
ployees. Irregularities  were  asserted,  and  the  need  of  inter- 
vention denied.  The  mayor  of  the  city  had  sent  a  statement 
as  to  strained  conditions  and  suggested  an  investigation.  The 
supreme  court  of  the  state  held  that  no  restraint  by  injunction 
would  be  proper  on  a  suggestion  of  the  mere  apprehension  of 
injury,  and  that  before  it  could  act  on  questions  of  alleged 
irregularity  they  should  be  argued  before  the  board  and  de- 
cided upon  by  it.  The  board  was  said  to  be  one  of  conciliation, 
with  no  power  but  to  form  and  record  a  decision,  and  without 

»  Acts  1894,  No.'139. 

»  Railroad  Co.  v.  State  Board  of  Arbitration,  47  La.  Ann.  874,  17  So.  418. 


LABOR  DISPUTES  337 

judicial  function.  It  is  not  bound  by  technical  rules  of  legal 
procedure,  but  must  conform  to  the  statute  under  which  it 
exists,  and  should  "observe  the  broad  rules  of  law  and  equity 
without  which  a  decision  cannot  be  just." 

The  federal  statute  relative  to  mediation  and  arbitration,^ 
popularly  known  as  the  Erdman  Act,  relates  only  to  common 
carriers  and  their  officers,  agents,  and  employees  engaged  in 
interstate  commerce,  except  masters  of  vessels  and  seamen. 
The  act  provides  for  a  commission  consisting  of  a  member  of 
the  Interstate  Commerce  Commission  or  of  the  Court  of  Com- 
merce, designated  for  this  duty  by  the  President,^  and  the 
United  States  Commissioner  of  Labor.  This  commission  is  to 
exercise  its  functions  as  a  mediator  on  the  request  of  either  party 
to  a  controversy  between  the  carrier  and  its  employees,  concern- 
ing wages,  hours  of  labor,  or  conditions  of  employment.  If 
mediation  and  conciliation  fail  to  lead  to  an  amicable  settlement 
of  the  difficulty,  the  commission  is  to  at  once  endeavor  to  bring 
about  an  arbitration  of  the  controversy.  The  board  of  arbitra- 
tion is  to  consist  of  three  members,  one  named  by  the  company, 
one  by  the  labor  organization  representing  the  employees  af- 
fected, and  the  third  by  the  first  two ;  if  the  persons  named  by 
the  parties  fail  to  nominate  the  third  member  within  five  days 
from  their  first  meeting,  the  commissioners  for  mediation  may 
name  him. 

Submission  to  arbitration  is  by  stipulations  signed  by  both 
parties,  who  agree  under  liability  for  damages  to  maintain  the 

«  U.S.  Comp.  Stat.,  p.  3205.  30  Stat.  424. 

«  Prior  to  the  act  of  Marrh  4,  1911  (36  Stat.  1397),  making  this  provision 
as  to  designation  by  the  President,  the  chairman  of  the  Interstate  Commerce 
Commission  was  fixed  upon  by  the  lawaa  a  member  of  the  commission  of  media- 
tion. 


338  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

existing  status  pending  the  decision  of  the  board,  by  which  they 
promise  to  abide.  Equity  may  enforce  the  award  so  far  as  its 
powers  extend.  It  has  already  been  noted  that  equity  carmot 
compel  the  performance  of  a  labor  contract  against  the  will  of 
any  person.  Dissatisfaction  with  the  award  is  not  to  be  a  ground 
for  withdrawal  or  discharge  from  employment  within  three 
months  from  its  rendition  unless  the  party  wishing  to  terminate 
the  relation  gives  the  other  party  thirty  days'  notice  in  writing. 
Awards  continue  in  effect  for  one  year  from  the  date  of  their 
going  into  operat  on.  The  award  is  to  be  filed  in  the  clerk's 
office  of  a  circuit  court  of  the  United  States  within  thirty  days 
from  the  appointment  of  the  third  arbitrator,  and  is  to  go  into 
effect  and  judgment  be  entered  upon  it  within  ten  days  from 
the  date  of  its  filing  unless  exceptions  for  matter  of  law  are  filed, 
in  which  case  the  operation  of  the  award  is  suspended  until 
determination  is  made  by  the  court  as  to  the  exceptions.  This 
decision  is  to  become  the  basis  of  a  judgment  at  the  expiration 
of  ten  days  unless  within  that  time  an  appeal  is  taken  to  a  cir- 
cuit court  of  appeals. 

There  is  Httle  from  which  to  determine  the  judicial  construc- 
tion of  this  act.  A  case  involving  the  determination  by  arbi- 
trators of  four  points  in  issue  between  a  railroad  company  and 
an  order  of  telegraph  operators^  resulted  in  objections  by  the 
telegraphers  to  the  award  in  two  points,  and  a  request  for  an 
entry  of  judgment  as  to  the  remaining  two  points.  The  first 
item  submitted  was  as  to  whether  the  members  of  the 
telegraphers'  order  employed  by  the  company  should  "legislate 
for"  or  act  in  behalf  of  its  train  dispatchers  in  the  matter  of 
wages  and  in  arbitration  proceedings.     On  this  point  the  ar- 

» In  re  Southern  Pacific  Co.,  155  Fed.  1001. 


LABOR  DISPUTES  339 

bitrators  decided  in  the  negative,  though  the  train  dispatchers 
were  for  the  most  part  members  of  the  order  and  had  voted  to 
authorize  the  operators  to  so  act  in  their  behalf.  The  arbi- 
trators rejected  the  contention  of  the  organization  that  only  the 
question  of  agency  was  submitted,  since  no  mere  matter  of 
simply  determined  fact  would  have  been  referred  for  decision, 
but  that  the  fair  understanding  of  the  submission  was  as  to  the 
question  of  principle  or  poUcy  affecting  the  relations  of  the 
parties  and  the  methods  of  conducting  the  dealings  of  the  em- 
ployer with  its  dispatchers ;  and  on  a  showing  by  the  company 
that  the  duties  of  dispatchers  were  essentially  different  from 
those  of  operators,  and  that  the  two  bodies  of  employees  were 
generally  classed  as  distinct,  the  award  of  the  arbitrators  was 
affirmed.  The  second  contention  was  that  a  specific  portion  of 
the  award  was  not  responsive  to  the  terms  of  the  submission. 
This  the  court  found  to  be  well  founded,  and  the  plea  of  the 
company  to  be  allowed  to  offer  an  interpretation  of  the  clause 
of  the  submission  under  consideration  was  refused,  the  court 
holding  that  where  there  was  no  ambiguity  there  was  no  room 
for  interpretation.  It  was  said  that  the  act  providing  for  ar- 
bitration put  the  proceedings  on  no  different  footing  from  that 
of  common-law  arbitrations,  i.e.,  that  they  rest  entirely  on  the 
agreements  made  by  the  parties,  from  which  alone  the  arbitrators 
derive  their  authority.  "While  the  proceeding  is  judicial  in  its 
character,  the  relation  of  the  parties  is  purely  a  contractual  one ; 
and  in  no  respect,  other  perhaps  than  in  the  application  of  the 
rules  of  evidence,  does  the  proceeding  partake  of  the  nature  of  a 
civil  action."  The  rules  that  govern  are  therefore  those  that 
relate  to  the  construction  and  interpretation  of  contracts  rather 
than  to  pleadings  in  a  suit  at  law ;  so  that  if  any  award  is  not 


340  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

responsive  to  the  terms  of  submission  as  they  would  be  ordinarily 
understood,  it  is  not  binding  upon  the  parties. 

As  to  the  request  for  entry  of  judgment  on  the  uncontro verted 
portions  of  the  award,  the  court  ruled  that,  under  the  provisions 
of  the  act  governing  exceptions  and  appeals,  no  judgment  could 
be  entered  prior  to  ten  days  after  the  determination  of  the  ex- 
ceptions ;  and  that  moreover  the  general  rules  applicable  in 
proceedings  of  this  sort  did  not  provide  for  the  enforcement  of 
awards  by  piecemeal,  since  each  item  would  doubtless  be  decided 
in  contemplation  of  all  the  others,  so  that  while  formally  sepa- 
rable, the  award  must  as  a  matter  of  fact  be  regarded  as  a  unit, 
and  indivisible  for  purposes  of  enforcement. 


APPENDIX 

Following  is  the  Field  Code  (see  sec.  4),  here  reproduced  as 
presenting  in  a  concise  form  the  general  rules  of  the  common 
law  governing  the  employment  of  labor.  The  numbering  of  the 
sections  is  that  used  in  the  Civil  Code  of  Montana,  1895. 

Section  2650.  The  contract  of  employment  is  a  contract 
by  which  one,  who  is  called  the  employer,  engages  another,  who 
is  called  the  employee,  to  do  something  for  the  benefit  of  the 
employer  or  of  a  third  person. 

Sec.  2660.  An  employer  must  indemnify  his  employee,  except 
as  prescribed  in  the  next  section,  for  all  that  he  necessarily  ex- 
pends or  loses  in  direct  consequence  of  the  discharge  of  his  duties 
as  such,  or  of  his  obedience  to  the  directions  of  the  employer, 
even  though  unlawful,  unless  the  employee,  at  the  time  of  obey- 
ing such  directions,  believed  them  to  be  unlawful. 

Sec.  2661.  An  employer  is  not  bound  to  indemnify  his  em- 
ployee for  losses  suffered  by  the  latter  in  consequence  of  the 
ordinary  risks  of  the  business  in  which  he  is  employed. 

Sec.  2662.  An  employer  must  in  all  cases  indemnify  his 
employee  for  losses  caused  by  the  former's  want  of  ordinary 
care. 

Sec.  2670.  One  who,  without  consideration,  undertakes  to 
do  a  service  for  another,  is  not  bound  to  perform  the  same,  but 
if  he  actually  enters  upon  its  performance,  he  must  u.se  at  least 
slight  care  and  diligence  therein. 

Sec.  2671.  One  who,  by  his  own  special  request,  induces 
another  to  intrust  him  with  the  performance  of  a  service,  must 
perform  the  same  fully.  In  other  cases,  one  who  undertakes  a 
gratuitous  service  may  relinquish  it  at  any  time. 

Sec.  2672.  A  gratuitous  employee,  who  accepts  a  written 
power  of  attorney,  must  act  under  it  so  long  as  it  remains  in 
force,  or  until  he  gives  notice  to  his  employer  that  he  will  not  do 
so. 

311 


342  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Sec.  2673.  One  who,  for  a  good  consideration,  agrees  to  serve 
another,  must  perform  the  service,  and  must  use  ordinary  care 
and  diligence  therein,  so  long  as  he  is  thus  employed. 

Sec.  2674.  One  who  is  employed  at  his  own  request  to  do 
that  which  is  more  for  his  own  advantage  than  for  that  of  his 
employer,  must  use  great  care  and  diligence  therein  to  protect 
the  interest  of  the  latter. 

Sec.  2675.  A  contract  to  render  personal  service,  other  than 
a  contract  of  apprenticeship,  *  *  *  cannot  be  enforced 
against  the  employee  beyond  the  term  of  two  years  from  the 
commencement  of  service  under  it ;  but  if  the  employee  volun- 
tarily continues  his  service  under  it  beyond  that  time,  the  con- 
tract may  be  referred  to  as  affording  a  presumptive  measure  of 
the  compensation. 

Sec.  2676.  An  employee  must  substantially  comply  with  all 
the  directions  of  his  employer  concerning  the  service  on  which 
he  is  engaged,  except  where  such  obedience  is  impossible  or  un- 
lawful, or  would  impose  new  and  unreasonable  burdens  upon 
the  employee. 

Sec.  2677.  An  employee  must  perform  his  service  in  conform- 
ity to  the  usage  of  the  place  of  performance,  unless  otherwise 
directed  by  his  employer,  or  unless  it  is  impracticable,  or  mani- 
festly injurious  to  his  employer  to  do  so. 

Sec.  2678.  An  employee  is  bound  to  exercise  a  reasonable 
degree  of  skill,  unless  his  employer  has  notice,  before  employing 
him,  of  his  want  of  skill. 

Sec.  2679.  An  employee  is  always  bound  to  use  such  skill  as 
he  possesses,  so  far  as  the  same  is  required,  for  the  service  speci- 
fied. 

Sec.  2680.  Everything  which  an  employee  acquires  by  virtue 
of  his  employment,  except  the  compensation,  if  any,  which  is 
due  to  him  from  his  employer,  belongs  to  the  latter,  whether 
acquired  lawfully  or  unlawfully,  or  during  or  after  the  expiration 
of  the  term  of  his  employment. 

Sec.  2681.  An  employee  must,  on  demand,  render  to  his 
employer  just  accounts  of  all  his  transactions  in  the  course  of 
his  service,  as  often  as  may  be  reasonable,  and  must,  without 
demand,  give  prompt  notice  to  his  employer  of  everything  which 
he  receives  for  his  account. 

Sec.  2682.  An  employee  who  receives  anything  on  account 
of  his  employer,  in  any  capacity  other  than  that  of  a  mere  ser- 
vant, is  not  bound  to  deliver  it  to  him  until  demanded,  and  is 


APPENDIX  343 

not  at  liberty  to  send  it  to  him  from  a  distance,  without  demand, 
in  any  mode  involving  greater  risk  than  its  retention  by  the 
employee  himself. 

Sec.  2683.  An  employee  who  has  any  business  to  transact 
on  his  own  account,  similar  to  that  intrusted  to  him  by  his 
employer,  must  always  give  the  latter  the  preference. 

Sec.  2684.  An  employee  who  is  expressly  authorized  to 
employ  a  substitute  is  liable  to  his  principal  only  for  want  of 
ordinary  care  in  his  selection.  The  substitute  is  directly  re- 
sponsible to  the  principal. 

Sec.  2685.  An  employee  who  is  guilty  of  a  culpable  degree 
of  negligence  is  liable  to  his  employer  for  the  damage  thereby 
caused  to  the  latter ;  and  the  employer  is  liable  to  him,  if  the 
service  is  not  gratuitous,  for  the  value  of  such  services  only  as 
are  properly  rendered. 

Sec.  2686.  Where  service  is  to  be  rendered  by  two  or  more 
persons  jointly,  and  one  of  them  dies,  the  survivor  must  act 
alone,  if  the  service  to  be  rendered  is  such  as  he  can  rightly 
perform  without  the  aid  of  the  deceased  person,  but  not  other- 
wise. 

Sec.  2700.  Every  employment  in  which  the  power  of  the  em- 
ployee is  not  coupled  with  an  interest  in  its  subject  is  terminated 
by  notice  to  him  of : 

1.  The  death  of  the  employer ;  or, 

2.  His  legal  incapacity  to  contract. 

Sec.  2701.    Every  employment  is  terminated  : 

1.  By  the  expiration  of  its  appointed  term. 

2.  By  the  extinction  of  its  subject. 

3.  By  the  death  of  the  employee ;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 

Sec.  2702.  An  employee,  unless  the  term  of  his  service  has 
expired,  or  unless  he  has  a  right  to  discontinue  it  at  any  time 
without  notice,  must  continue  his  service  after  notice  of  the 
death  or  incapacity  of  his  employer,  so  far  a.s  is  necessary  to  pro- 
tect from  serious  injury  the  interests  of  the  employer's  successor 
in  interest,  until  a  reasonable  time  after  notice  of  the  facts  has 
been  communicated  to  such  successor.  The  successor  must 
compensate  the  employee  for  such  service  according  to  the 
terms  of  the  contract  of  employment. 

Sec.  2703.  An  empioymont  having  no  specified  term  may 
be  terminated  at  the  will  of  eithor  party,  on  notice  to  the  other, 
except  where  otherwise  provided  by  this  title. 


344  LAW  OF  THE  EMPLOYMENT  OF  LABOR 

Sec.  2704.  An  employment,  even  for  a  specified  term  may 
be  terminated  at  any  time  by  the  employer,  in  case  of  any  will- 
ful breach  of  duty  by  the  employee  in  the  course  of  his  employ- 
ment, or  in  case  of  his  habitual  neglect  of  his  duty  or  continued 
incapacity  to  perform  it. 

Sec.  2705.  An  employment,  even  for  a  specified  term,  may 
be  terminated  by  the  employee  at  any  time,  in  case  of  any  will- 
ful or  permanent  breach  of  the  obligations  of  his  employer  to 
him  as  an  employee. 

Sec.  2706.  An  employee,  dismissed  by  his  employer  for  good 
cause,  is  not  entitled  to  any  compensation  for  services  rendered 
since  the  last  day  upon  which  a  payment  became  due  to  him 
under  the  contract. 

Sec.  2707.  An  employee  who  quits  the  service  of  his  employer 
for  good  cause  is  entitled  to  such  proportion  of  the  compensation 
which  would  become  due  in  case  of  full  performance  as  the 
services  which  he  has  already  rendered  bear  to  the  services  which 
he  was  to  render  as  full  performance. 

Sec.  2720.  A  servant  is  one  who  is  employed  to  render  per- 
sonal service  to  his  employer,  otherwise  than  in  the  pursuit  of 
an  independent  calling,  and  who  in  such  service  remains  entirely 
under  the  control  and  direction  of  the  latter,  who  is  called  his 
master. 

Sec.  2721.  A  servant  is  presumed  to  have  been  hired  for  such 
length  of  time  as  the  parties  adopt  for  the  estimation  of  wages. 
A  hiring  at  a  yearly  rate  is  presumed  to  be  for  one  year  ;  a  hiring 
at  a  daily  rate,  for  one  day  ;  a  hiring  by  piecework,  for  no  speci- 
fied term. 

Sec.  2722.  In  the  absence  of  any  agreement  or  custom  as  to 
the  term  of  service,  the  time  of  payment,  or  rate  or  value  of 
wages,  a  servant  is  presumed  to  be  hired  by  the  month,  at  a 
monthly  rate  of  reasonable  wages,  to  be  paid  when  the  service 
is  performed. 

Sec.  2723.  Where,  after  the  expiration  of  an  agreement  re- 
specting the  wages  and  the  term  of  service,  the  parties  continue 
the  relation  of  master  and  servant,  they  are  presumed  to  have 
renewed  the  agreement  for  the  same  wages  and  term  of  service. 

Sec.  2724.  The  entire  time  of  a  domestic  servant  belongs  to 
the  master ;  and  the  time  of  other  servants  to  such  extent  as  is 
usual  in  the  business  in  which  they  serve,  .  .  . 

Sec.  2725.  A  servant  must  deliver  to  his  master,  as  soon  as 
with  reasonable  diligence  he  can  find  him,  everything  that  he 


APPENDIX  345 

receives  for  his  account,  without  demand ;  but  he  is  not  bound, 
without  orders  from  his  master,  to  send  anything  to  him  through 
another  person. 

Sec.  2726.  A  master  may  discharge  any  servant,  other  than 
an  apprentice,  whether  engaged  for  a  fixed  term  or  not : 

1.  If  he  is  guilty  of  misconduct  in  the  course  of  his  service,  or 
of  gross  immorahty,  though  unconnected  with  the  same ;    or, 

2.  If,  being  employed  about  the  person  of  the  master,  or  in  a 
confidential  position,  the  master  discovers  that  he  has  been 
guilty  of  misconduct,  before  or  after  the  commencement  of  his 
service,  of  such  a  nature  that  if  the  master  had  known  or  con- 
templated it,  he  would  not  have  so  employed  him. 

Sec.  2760.  One  who  officiously,  and  without  the  consent  of 
the  real  or  apparent  owner  of  a  thing,  takes  it  into  his  possession 
for  the  purpose  of  rendering  service  about  it,  must  complete  such 
service,  and  use  ordinary  care,  diligence,  and  reasonable  skill 
about  the  same.  He  is  not  entitled  to  any  compensation  for  his 
service  or  expenses,  except  that  he  may  deduct  actual  and  neces- 
sary expenses,  incurred  by  him  about  such  service,  from  any 
profits  which  his  service  has  caused  the  thing  to  acquire  for  its 
owner,  and  must  account  to  the  owner  for  the  residue. 


LIST  OF  CASES  CITED 


Adair  v.  United  States,  5,  193,  234. 

Adams  v.  Brennan,  241. 

Adams  D.  Fitzpatrick,  11. 

.^titus  V.  Coal  Co.,  99. 

Aikens  v.  Wisconsin,  245,  257,  262,  274, 

292. 
Alabama  G.  S.  R.  Co. ». Thompson,  204. 
Alaska   Treadwell   Gold   Min.   Co.   v. 

Whelan,  161. 
Albro  V.  Jaquith,  199. 
Alexander  M.  Lawrence,  The,  47. 
Alexander  v.  Carolina  Mills,  105. 
Alfson  V.  Bush.  122. 
Allen  V.  Boston  &  M.  R.  Co.,  142. 
Allen  V.  Compress  Co.,  28. 
Allen  V.  Flood,  36,  37. 
Allen  V.  Goodwin,  161 
Allgeyer  v.  Louisiana,  4. 
Allis-Chalmers    Co.    v.    Iron    Molders' 

Union,  220,  221,  222,  261,  262,  277, 

279,  318,  325. 
Althorf  V.  Wolfe,  202. 
American  Car  &  Foundry  Co.  v.  Ar- 

mentraut,  104,  105,  126. 
American  Fed.  of  Labor  v.  Bucks  Stove 

&  Range  Co..  282. 
American   Steel   &   Wire  Co.   v.   Wire 

Drawers'  Union,  221,  308.  313,  316. 
Anderson  v.  Drop  Forging  Co.,  324. 
Anderson  v.  Michigan  C.  R.  Co.,  130. 
Andrews.  Ex  parte,  80. 
Andricus'  Adm'r.  v.  Coal  Co.,  133. 
Angle  V.  Chicago  R.  Co.,  35,  298. 
Anglo  t'.  Hanna,  31. 

Anoka  Lumber  Co.  v.  Fidelity  &  Casu- 
alty Co.,  182. 
Anstee  v.  Ober,  27. 
Antioch  Coal  Co.  v.  Rockey,  134. 


A.  R.  Barnes  <fe  Co.  r.  Berry  (2  cases), 

237,  238,  268,  275,  276.  320. 
A.  R.  Barnes  <fe  Co.  v.  Typographical 

Union,  221,  222,  278,  280,  311,  312, 

321,  329,  330. 
Armistead  v.  Chatters,  40. 
Arms  V.  Ayer,  89,  93. 
Armstrong  v.  State,  79. 
Arnold  v.  Yanders,  123. 
Arthur  v.  Oakes.  13.  213,  216.  253.  257, 

258,   259.   263,   268,   272,   276,   287, 

307,  319,  326. 
Ash  r.  Guie.  223. 
Asher  r.  Tomlinson.  16. 
Atchison,  T.  &  S.  F.  R.  Co.  r.  Brown.34. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Gee,  278, 

321. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Penfold, 

135. 
Atkin  V.  Kansas,  7,  8,  50,  78. 
Atkins  V.  Fletcher  Co.,  6,  217,  220.  281, 

317. 
Atkinson  v.  Woodmansee,  61. 
Atlanta  r.  Stein,  241,  250. 
Atlantic  Coast  Line  R.  Co.  v.  Beaxley, 

147.  174. 
Atlantic  Coast  Line  R.  Co.  v.  State.  92. 
Attloboro  Mfg.  Co.  v.  Insurance  Co., 

183. 
Attorney-General  r.  Ice  Co..  308. 
Attoyac  River  Lumber  Co.  r.  Payne.  69. 
Au  r.  New  York.  L.  E.  &  W.R.Co..  166. 
Aubry,  In  re,  114. 

Aultman  A  Taylor  Co.  r.  Smith.  56. 
Avent-noatty\-ille   Coal    Co.   t.    Com- 
monwealth, 65. 
Babrock  r.  Appleton  Mfg.  Co..  33. 
Babcock.  etc.,  Co.  r.  Moore,  9. 


347 


348 


LIST  OF  CASES  CITED 


Bacon  V.  Sewing  Machine  Co.,  24. 

Bagley  v.  Bates,  3. 

Bailey  v.  Alabama,  18,  21. 

Bailey  v.  Master  Plumbers,  227,  254. 

Bailey  v.  State,  18. 

Baker  v.  Insurance  Co.  (2  cases),  36, 

293,  294. 
Baker  J).  Portland,  119. 
Baldwin  v.  Association,  317. 
Baldwin  v.  Marqueze,  30. 
Baltimore  &  0.  R.  Co.  v.  Baugh,  164, 

155,  157. 
Baltimore  &  O.  R.  Co.  v.  Ray,  148. 
Baltimore  &  P.  R.  Co.  v.  Jones,  139. 
Baltimore  &  P.  R.  Co.  v.  Mackey,  134. 
Baltimore,  etc.,  Co.  v.  Stankard,  147. 
Barbour  v.  Albany  Lodge,  219. 
Barnes  &  Co.  v.  Berry  (2  cases),  237, 

238,  268,  275,  276,  320. 
Barnes  &  Co.  v.  Chicago  Typographical 

Union,  221,  222,  278,  280,  311,  312, 

321,  329,  330. 
Baron  v.  Placide,  29. 
Barr  v.  Essex  Trades  Council,  286,  306, 

307. 
Barstow  v.  Old  Colony  R.  Co.,  177. 
Bartholomew  v.  Jackson,  1. 
Bass  V.  Chicago  &  N.  W.  R.  Co.,  203, 
Bass  V.  Doermann,  64. 
Beach  v.  MuUin,  10,  12. 
Beck    V.     Railway    Teamsters'    Prot. 

Union,  277,  278,  286,  288,  289,  309, 

316. 
Bell  V.  Hiner,  64. 
Benz  r.  Kremer,  90. 
Berea  Stone  Co.  v.  Kraft,  166. 
Bernard  v.  Hipping,  81. 
Berry  v.  Donovan,  216,  239,  240,  244, 

262,  266,  297.  303,  322. 
Berry  v.  Wallace,  3. 
Bessette  v.  Conkey,  313,  323,  329. 
Bessette  c.  People,  114. 
Bessette,  In  re,  313,  329. 
Birlant  v.  Cleckley,  47. 
Bixby  r.  Dunlap,  35. 
Blanchard  v.  District  Council,  232,  304. 


Bodell  V.  Brazil  Block  Coal  Co.,  129. 
Bodwell  V.  Manufacturing  Co.,  173. 
Bohn  Mfg.  Co.  v.  Mollis,  37,  257,  284, 

285. 
Bonaud  r.  Genesi,  312. 
Booth  V.  Burgess,  261,  320. 
Booth  V.  People,  8. 
Boston  Glass  Co.  v.  Binney,  39. 
Boston  &  A.  R.  Co.  v.  Mercantile  Trust 

&  Deposit  Co.,  182. 
Boutwell  V.  Marr,  214,  215,  229,  236, 

246,  274,  286. 
Bovard  v.  Ford,  45. 
Boyd  V.  State,  314. 
Boyer  v.  Western  Union  Tel.  Co.,  17, 

234,  293. 
Brace  Bros.  v.  Evans,  282,  286. 
Braceville  Coal  Co.  v.  People,  53. 
Bradley  v.  New  York  C.  R.  Co.,  177. 
Bradley  v.  State,  325. 
Braman  v.  Foss,  317. 
Brannan  v.  Hoel,  204. 
Branson  v.  Industrial  Workers  of  the 

World,  220,  222,  223,  282.  287,  292, 

301,  304. 
Braswell  v.  Cotton  Oil  Mill  Co.,  106. 
Bredeson  v.  Lumber  Co.,  97. 
Breeden  v.  Frankfort,  etc.,  Ins.  Co.,  181. 
Brennan  v.  Hatters,  216,  228,  236,  262, 

267,  297,  304. 
Britton  v.  Turner,  12,  16. 
Brookfield  v.  Drury  College,  10. 
Brower  v.  Northern  P.  R.  Co.,  199. 
Brown  v.  Jacobs'  Pharmacy  Co.,  236. 
Brown  v.  Stoerkel,  219,  220,  226. 
Brunnettr.  Clark,  81. 
Bryant  v.  Skillman  Hardware  Co.,  102. 
Buckingham  v.  Canal  Co.,  9. 
Bucks  Stove  &  Range  Co.  v.  American 

Fed.  of  Labor  (2  cases),  257,  288, 

293,  312. 
Buffalo  Forge  Co.  v.  Mutual  Seciirity 

Co.,  272. 
Buela  V.  Newman,  249. 
Burdett  v.  Commonwealth,  324. 
Burke  v.  Fay,  229,  240,  286,  301. 


LIST  OF  CASES  CITED 


349 


Burnetta  r.  Marceline  Coal  Co.,  237, 

238. 
Burns  v.  Marland  Mfg.  Co.,  55. 
Burtc.  Lathrop,  219. 
Burtis  V.  Thompson,  25. 
Butler  V.  Townsend,  127. 
Butterfield  v.  Ashley,  38. 

Calkins  v.  Mining  Co.,  82. 

Callan  v.  Wilson,  254. 

Callopy  V.  Atwood,  97. 

Camp  V.  Baldwin-Melville  Co.,  27. 

Campbell  v.  Cooper,  38,  39. 

Campbell  v.  Johnson,  231,  232,  297. 

Capron  v.  Strout,  10. 

Carew  v.  Rutherford,  71,  213,  215,  229, 

240.  266,  301,  304. 
Carnig  v.  Carr,  9. 

Carpenter  r.iChicago  &  E.  I.  R.  Co.,  182. 
Carri).  Coal  Co.,  31. 
Carr  v.  District  Court,  311. 
Carroll  v.  East  Tennessee,  Va.  &  Ga. 

R.  Co.,  136. 
Carson  v.  Calhoun,  46,  81. 
Carson  v.  Ury,  248. 
Carter  v.  ^tna  Life  Ins.  Co.,  180. 
Carter  v.  Oster,  300. 
Carter's  Case,  324. 
Casey   v.    Tj-pographical    Union,   217, 

286,  289,  309. 
Caspar  v.  Lewin,  97. 
Caven  v.  Coleman,  114. 
Chamberlain  v.  Stove  Works,  10. 
Champion  v.  Hannahan,  231. 
Chapman  v.  Berrv',  56. 
Cheadle  v.  State,  324. 
Chemical  W^orks  ».  Pender,  11. 
Chesapeake  &  O.  R.  Co.  r.  Dixon,  202, 

204. 
Chesapeake  &  O.  R.  Co.  r.  Rowsey's 

Adm'r,  92.  129. 
Chicago  V.  Hulbcrt,  119. 
Chicago  &  A.  R.  Co.  v.  Johnson,  152. 
Chicago  *  A.  R.  Co.  r.  Myers,  152. 
Chicago,  B.  &  Q.  R.  Co.  t.  McGuire,  9, 

148. 


Chicago,  B.  4  Q.  R.  Co.  r.  Miller,  147. 
Chicago,  B.  &  Q.  R.  Co.  v.  Wolfe,  196. 
Chicago-Coulter\ille  Coal  Co.  r.  Fidel- 
ity &  Casualty  Co.,  183. 
Chicago   Federation   of    Musicians   v. 

Musicians'  Union,  230,  327. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Rosa, 

155,  156,  158,  165. 
Chicago,  M.  &  St.  P.  R.  Co.  r.  Solan. 

147. 
Chicago,  R.  I.  &  P.  Co.  v.  State,  91. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Zemecke, 

196. 
Chicago  Typothetse  v.  Franklin  Union, 

329. 
Chicago,  W.  4  V.  Coal  Co.  r.  People,  90. 
Chicago,  etc.,  R.  Co.  r.  Gildersleeve, 

324. 
Child  r.  Boyd,  etc.,  Mfg.  Co.,  29. 
Chinese  Exclusion  Case,  120. 
Chipley  v.  Atkinson,  35. 
Choctaw,  O.  &  G.  R.  Co.  v.  McDade, 

127. 
Chrestman  v.  Russell,  40. 
Christensen  r.  People,  244. 
Cigar  Makers'  I.  U.  r.  Goldberg,  249. 
Cigar  Makers'  Union  v.  Conhaim,  247. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 

Hill's  Adm'r,  162. 
City  of  Alma  v.  Loehr,  307. 
City  of  St.  Louis  v.  Gloner,  282,  322. 
Clark  r.  Fensky,  48. 
Clark  V.  Gilbert.  31. 
Clark  r.  Smith,  47. 
Clark  r.  State,  49. 
Clark's  Case.  13. 

Cleland  r.  Anderson,  218.  222,  253. 
Cleveland  v.  Construction  Co..  79. 
Cleveland.  C.  &  C.  R.  Co.  t.Keary,  163. 
Cleveland,  C.  C.  A  St.  L.  R.  Co.  v. 

Jenkins,  33,  34. 
Clothing  Co.  r.  Watson,  288,  309. 
Chine  r.  United  States.  258. 
Clyatt  r.  United  States.  19. 
Coal  Co.  r.  Costello.  45. 
Coal  Co.  V.  Lamb.  110. 


350 


LIST  OF  CASES  CITED 


Coe  V.  R.  Co.,  64. 

Coeur  d'Alene  Consol.   Mining  Co.  v. 

Miners'  Union,  217,  289,  306,  307, 

308,  309. 
Coffee  V.  New  York,  etc.,  R.  Co.,  170. 
Coffeyville  Brick  &  Tile  Co.  v.  Perry, 

234. 
Cohn  V.  People,  248. 
Collins  V.  Hazelton,  24. 
Collins  V.  Iron  Co.,  3. 
Collins  Ice  Cream  Co.  v.  Stephens,  79. 
Columbia  Paper  Stock  Co.  v.  Fidelity 

Co.,  180,  182. 
Comben  v.  Belleville  Stone  Co.,  142. 
Comerford  v.  Street  Ry.  Co.,  16. 
Commonwealth  v.  Beatty,  102. 
Commonwealth  v.  Butler,  45. 
Commonwealth  v.  Clark,  234. 
Commonwealth  v.  Dunn,  62. 
Commonwealth  v.  Hamilton  Mfg.  Co., 

101,  103. 
Commonwealth  v.  Hillside  Coal  Co.,  70. 
Commonwealth  v.  Hunt,  71,  267. 
Commonwealth  v.  Perry,  50. 
Commonwealth  v.  St.  Germans,  2. 
Commonwealth  v.  Shaleen,  112. 
Conkey  v.  Russell,  259,  328. 
Connett  v.  Hatters,  297,  320,  321. 
Connolly  v.  Bolster,  180. 
Connolly  v.  Pipe  Co.,  253. 
Consol.  Coal  Co.  v.  Lundak,  144. 
Consol.  Coal  Co.  v.  Seniger,  111,  134. 
Consol.  Coal  Co.  v.  Wombacher,  162. 
Consol.  K.  C.  Smelting  &  Refining  Co. 

V.  Peterson,  166. 
Consol.  Mining  Co.  v.  Bateman,  141. 
Coombs  V.  New  Bedford  Cordage  Co., 

138. 
Cooper  V.  Stronge  &  Warner  Co.,  30. 
Coops  V.  Lake  Shore  &  M.  S.  R.  Co., 

151. 
Corgan  v.  Coal  Co.,  28. 
Costigan  v.  Mohawk  R.  Co.,  24. 
Cote  V.  Murphy,  218. 
Cotton  Jammers,  etc.  v.  Taylor,  225, 

228,  231. 


Counsell  v.  Hall,  173. 

County  Commissioners  v.  Aspen  Min. 

Co.,  205. 
Crall  V.  Toledo  &  O.  C.  R.  Co.,  35. 
Crawford  v.  Publishing  Co.,  28. 
Crawford  v.  Wick,  226. 
Crescent  Horseshoe  Co.  v.  Eynon,  27. 
Crisp  V.  R.  Co.,  55. 
Crispin  v.  Babbitt,  166. 
Cronemillar  v.  Milling  Co.,  10,  25. 
Crump  V.  Commonwealth,  282,  288. 
Crystal  Ice  Co.,  Sheriock,  166. 
CuUen  V.  Norton,  178. 
Cumberland  Glass  Mfg.  Co.,  v.  Glass 

Bottle  Blowers,   216,  263,  271,  279, 

315,  322. 
Cumberland  Glass  Mfg.  Co.  v.  State, 

65,  66. 
Curiey  v.  Hoff,  163. 
Curran  v.  Fleming,  56. 
Curran  v.  Galen,  214,  216,  239,  242, 

252,  262,  263,  267,  271,  274,  297,  302, 

304. 
Curtis  V.  A.  Lehman  Co.,  27,  31. 
Cutter  V.  Gillette,  25. 

Daniel  v.  Swearengen,  38. 

Darsam  v.  Kohlmann,  104. 

Davidson  v.  Flour  City  Works,  97. 

Davidson  v.  Jennings,  61. 

Davidson  v.  State,  113. 

Davis  V.  Gray,  325. 

Davis  V.  Maxwell,  12,  15. 

Davis  V.  Mercer  Lumber  Co.,  129. 

Davis  V.  Morgan,  30. 

Davis  V.  New  England  R.  Pub.  Co., 
294. 

Davis  V.  State,  234. 

Davis  Coal  Co.  v.  Polland,  145. 

Dayharsh  v.  Hannibal  &  St.  J.  R.  Co., 
167. 

Dayton  Coal  &  Iron  Co.  v.  Barton,  66. 

Debs,  In  re,  214,  221,  222,  255,  306, 
308,  321,  323,  331. 

Deer  Trail  Consol.  Min.  Co.  r.  Casu- 
alty Co.,  180. 


LIST  OF  CASES  CITED 


351 


Delaware,  etc.,  R.  Co.  v.  Switchmen's 

Union,  236,  237,  275. 
Delk  V.  R.  Co.,  130. 
De  Loraz  v.  McDowell,  26. 
De  Minico  v.  Craig,  263,  265,  304,  307, 

317. 
Dempsey  v.  Chambers,  203. 
Deni  v.  P.  R.  Co.,  122. 
Denver  &  R.  G.  R.  Co.  v.  Gannon, 

93,  97,  145. 
Denver  &  R.  G.  R.  Co.  v.  Norgate,  93, 

95,  141. 
Denver  &  R.  G.  R.  Co.  v.  Reiter,  117. 
Deserant  v.  Cerillos  Coal  R.  Co.,  90. 
Detroit,  etc.,  R.  Co.  v.  State,  91. 
Diamond  State  Iron  Co.  v.  Bell.,  32. 
Dickey  v.  Linscott,  31, 
Dickey,  Ex  parte,  210. 
Dingwall  v.  Association,  231. 
District  of  Columbia  v.  Brooke,  94. 
Dixon  V.  Poe,  67. 

Dobbin  V.  Richmond  &  D.  R.  Co.,  162. 
Dobyns  v.  Yazoo  &  M.  V.  R.  Co.,  152. 
Dodge  V.  Favor,  3. 

Donald  v.  Chicago,  B.  &  Q.  R.  Co.,  148. 
Doolittle,  In  re,  325,  326. 
Doremus  v.  Henncssy,  246,  301. 
Dorsey  v.  State,  18. 
Douglas  V.  People,  113. 
Drayton,  Ex  parte,  19. 
Dubois  V.  Delaware  &  H.  Canal  Co.,  47. 
Dudley  v.  Hurst,  306. 
Dugan  V.  Anderson,  16. 
Duncan  v.  Baker,  16. 
Dunn  V.  Moore,  15. 
Duquesne  Distributing  Co.  v.  Green- 

baum,  204. 
Durkin  v.  Kingston  Coal  Co.,  110,  116, 

134,  199. 

East  Tcnn.,  Va.  &  Ga.  R.  Co.  v.  Duf- 

field.  144. 
Echols  V.  Fleming,  27. 
Eden  v.  People,  79. 

Edwards  v.  Seaboard  &  R.  R.  Co.,  11. 
Edwards'  Adm'r.  r.  Lam.,  179. 


Efron  r.  Clayton,  26. 

Ehrlich  v.  Willenski,  223,  224. 

Ehrmantraut  v.  Robinson,  224. 

Eilenbecker  v.  Plymouth  Co.,  323. 

Elder  v.  Whitesides,  252. 

Eldorado  Coal  &  Coke  Co.  v.  Swan,  99. 

El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez,  196. 

Emerson  v.  Huss,  325. 

Emmens  v.  Ederton,  9. 

Employing   Printers'    Club   v.   Doctor 

Blosser  Co.,  298,  302. 
Erdman  v.  Mitchell,  229,  267,  296,  316, 

320. 
Erickson  v.  American  Steel  «fe  Wire  Co., 

132. 
Ertz  V.  Produce  Exchange,  37,  285. 
Evans  v.  R.  Co.,  11. 
Evansville  Hoop  &  Stave  Co.  v.  Bailey, 

93. 
Evarta  v.  St.  Paul,  M.  &.  M.  R.  Co.. 

177. 
Everett-Waddy  Co.  v.  Typographical 

Union,  273,  276,  279,  307. 
Ewing  V.  Jansen,  30. 

Falconio  v.  Larsen,  64. 

Faren  v.  Sellers,  162. 

Farmer  v.  Kearney,  179. 

Farmers'  L.  &  T.  Co.  v.  Northern  P.  R. 

Co.,  216,  318. 
Farwell  v.  Boston  &  W.  R.  Corp.,  202. 
Fawcett  v.  Cash,  32. 
Felton  V.  Girardy,  176. 
Ferira  v.  Sayres,  32. 
Fewings  v.  Mendcnhall,  269. 
Fidelity  &  Casualty  Co.  r.  Lone  Oak 

Cotton  Oil  &  Gin  Co.,  183. 
Fischer  r.  State.  .300. 
Fisher  v.  WaLsh.  33,  270. 
Fitzgerald  r.  Paper  Co.,  73. 
Flaccus  V.  Smith.  216.  276,  296. 
Flaherty  v.  Longshoremen's  Ben.  Soc.i 

217.  226.  228. 
Fiukor  r.  R.  Co..  42. 
Flukes,  In  re,  57. 
Fogarty  r.  St.  Louis  Transfer  Co.,  166. 


352 


LIST  OF    CASES  CITED 


Foley  V.  Pioneer  Mining  Co.,  133. 

Folsom  V.  Lewis,  244,  265,  317. 

Ford  V.  State,  324. 

Forsyth  v.  McKinney,  29. 

Fort  V.  Whipple,  204. 

Ft.  Wayne,  etc..  Traction  Co.  r.  Roude- 

bush,  141. 
Fowler  v.  Armour,  26. 
Frank  Unnewehr  Co.  v.  Insurance  Co., 

184. 
Frank  v.  Herold,  38,  216,  260,  271,  273, 

319. 
Frank  v.  Maternity,  etc.,  Co.,  11. 
Frank  v.  Newport  Mining  Co.,  147. 
Franklin  v.  Lumber  Co.,  27. 
Franklin  v.  United  R.  &  E.  Co.,  185. 
Franklin  Union  v.  People,  217,  218,  329. 
Frary  v.  Rubber  Co.,  28. 
Fraser  v.  McConway  &  Torley  Co.,  121. 
Freeman  v.  Paper  Mill  Co.,  128. 
Frorer  v.  People,  5,  70. 
F.  R.  Patch  Mfg.  Co.  v.  Capeless,  220, 

222,  304. 
F.  R.  Patch  Mfg.  Co.  v.  International 

Ass'n.,  301,  304. 
Frye  v.  Gas  &  Electric  Co.,  181. 
Fuchs  V.  Koerner,  26. 
Fuller  V.  Little,  26. 
Fulton  V.  Wilmington  Star  Mining  Co., 

134. 
Furman  v.  Applegate,  42. 

Gagnon  v.  Machine  Co.,  141. 
Gallagher  v.  Manufacturing  Co.,  51. 
Galveston  Oil  Co.  i'.  Thompson,  176. 
Garretzen  v.  Duenckel,  203. 
Gatzow  V.  Buening,  214,  227,  229,  252, 

304.  329. 
General  Tire  Repair  Co.  v.  Price,  41. 
Geo.  Jonas  Glass  Co.  v.  Glass  Bottle 

Blowers    (2    cases),    221,    278,    281, 

287,  315,  319,  322. 
George  ».  Clark,  141. 
George  v.  Railwaj^  Co.,  141. 
Gibson  v.  Fidelity  &  Casualty  Co.,  36. 
Gill  V.  United  States,  74. 


Gillespie  v.  People,  234. 

Gillis  V.  Space,  2. 

Glens    Falls   Portland    Cement  Co.  v. 

Travelers'  Ins.  Co.,  183. 
Glockner  v.  Hardware  Mfg.  Co.,  97. 
Gmaehle  v.  Rosenberg,  170. 
Godcharles  v.  Wigeman,  66,  76. 
Goddard  v.  Foster,  1. 
Goldberg  v.   Stablemen's   Union,   216, 

260,  271,  315,  316. 
Golden  ».  Coal  Co.,  110. 
Goldenstein  v.  Baltimore  &  O.  R.  Co., 

149. 
Goldfield  Consol.   Mines  Co.  v.  Gold- 
field  Miners'  Union,  251,  259,  267, 

272,  273,  281,  319. 
Goldstein  v.  White,  15. 
Gompers  v.  Bucks  Stove  &  Range  Co. 

(3  cases),    309,  311,  312,  318,  323, 

326,  327,  328,  330. 
Gorman  v.  Mc.\rdle,  94. 
Gormley  c.  Clark,  317. 
Gottleib  V.  R.  Co.,  134. 
Gower  v.  Andrew,  3. 
Gray  v.  Building  Trades'  Council,  266, 

267,  285,  289,  290,  309,  316,  320. 
Green  v.  Brainerd  &  N.  M.  R.  Co.,  175. 
Green  v.  Felton,  227. 
Green  v.  Watson,  56. 
Grenada   Lumber    Co.    v.  Mississippi, 

254,  318. 
Grice,  In  re,  218. 
Griggs  V.  Swift,  31. 
Gulf,  etc.,  R.  Co.  V.  Ellis,  21,  61. 
Gulf,  C.&  S.  F.  R.  Co.  V.  Schwabbe,  167. 
Guthrie  V.  Merrill,  73. 

Hackman  v.  Flory,  47. 
Hale  V.  State,  325. 
Haley  i'.  Case,  173. 

Hall  V.  Emerson-Stevens  Mfg.  Co.,  133. 
Hall  Lace  Co.  v.  Javes,  314. 
Hamblin  v.  Dinneford,  14. 
Hamilton  v.  Love,  25,  26,  29. 
Hammerstein  v.  Parsons,  219. 
Hammond  Packing  Co.  v.  State,  67,  68. 


LIST  OF  CASES  CITED 


353 


Hanchett  v.  Chiatovich,  72. 

Hancock  v.  Yaden,  52. 

Haney  i).  Caldwell,  10.  11. 

Harbison  v.  Iron  Co.,  66,  67. 

Hardy  ».  Minneapolis  &  St.  L.  R.  Co., 
167. 

Hare  v.  Mclntire,  199. 

Harmon  v.  Salmon  Falls  Mfg.  Co.,  3. 

Harmon  v.  State,  112. 

Harris  v.  Detroit  Typographical  Union, 
231. 

Harrison  v.  Sugar  Refining  Co.,  13. 

Harrod  v.  Latham,  128. 

Hart  V.  Hess,  1. 

Haskins  v.  Royster,  36,  38. 

Hasselman  Printing  Co.  v.  Fry,  1,  14. 

Hatton  V.  Mountford,  28. 

Hawkins  v.  Gilbert,  15. 

Hays  V.  Mercier,  61. 

Heard  v.  Crum,  45. 

Henderson  v.  Koenig,  10. 

Henderson  Bridge  Co.  v.  McGrath,  47. 

Hendrix  v.  State,  40. 

Hennington  v.  State,  80. 

Henrietta  Coal  Co.  v.  Martin,  109,  111. 

Hetterman  v.  Powers,  248. 

Hewett  V.  Swift,  204. 

Hewitt  V.  Prime,  42. 

Hey  t).  Wilson,  289. 

Hey  wood  v.  Tillson,  71. 

Higgins,  In  re,  219.  263.  326. 

Hightower  v.  State.  39. 

Hildebrand  ».  Art  Co..  15.  16. 

Hill  V.  American  Surety  Co.,  63. 

Hill  V.  Morey.  202. 

Hill  V.  Robeson.  31. 

Hillenbrand  v.  Building  Trades'  Coun- 
cil, 267. 

Hillsboro  Nat.  Bank  v.  Hyde,  73. 

Hillyard  v.  Crabtree,  199. 

Hilton  V.  Eckersley,  14.  236. 

Hinds  V.  Overacker.  199. 

Hitchman  Coal  Co.  v.  Mitchell,  276, 
296,  321. 

Hoadly  v.  International  Paper  Co.,  81. 

Holdcn  V.  City  of  Alton.  250. 

2a 


Holden  r.  Hardy,  7.  8,  77,  90.  196. 

Holder  v.  Cannon  Mfg.  Co.,  35. 

Hollenbeck  v.  Ristinc,  37. 

Hollman.  Ex  parte,  19. 

Holshouser  v.  Denver  Gas  <fe  El.  Co., 

270. 
Home  Mixture  Guano  Co.  r.  Insurance 

Co.,  183. 
Hool  V.  Dorroh,  38,  39,  40. 
Hopkins  v.  Oxley  Stave  Co.,  236,  268, 

287.  310,  322. 
Hopkins  v.  United  States,  213. 
Horn  V.  Association,  10. 
Hotchkiss  V.  Godkin,  9. 
Hough  r.  Texas  &  P.  R.  Co.,  141,  155. 
House  BUI  No.  203,  In  re.  51. 
Houston  &  T.  C.  R.  Co.  v.  Burnet.  152. 
Hoveland  v.  National  Blower  Works, 

127. 
Hoven  c.  Employers'  Liability  Assur- 
ance Corp..  182.  183. 
Howard  v.  Illinois  C.  R.  Co..  196. 
Howd  V.  Mississippi  C.  R.  Co.,  163. 
Hudson,  The,  11. 
Hulse  V.  Bonsack  Mach.  Co.,  74. 
Hundley  v.  Louisville  &  N.  R.  Co.,  33, 

34.  294. 
Hunt  V.  Crane.  26. 
Hunt  r.  Otis  Co..  33. 
Hurley  v.  Tucker,  61. 
Huskie  v.  Griffin,  35,  275. 
Hutson  V.  Missouri  P.  R.  Co.,  166. 
Huttig  Sash  A  Door  Co.  r.  Fuelle.  288, 

309,  311.  328. 
Hyde  V.  Woods,  219. 
Hyvonen  v.  Hector  Iron  Co.,  112. 

Ideal  Mfg.  Co.  v.  Ludwig,  277.  327. 

Illinois  C.  R.  Co.  v.  Josey's  Adm'r., 
166. 

Inbusch  V.  Farwcll,  220. 

Indiana,  B.  &  W.  R.  Co.  r.  Dailey.  138. 

International,  etc.,  R.  Co.  «.  McDon- 
ald. 203. 

International  Textbook  Co.  v.  Weis- 
singer.  58. 


354 


LIST  OF  CASES  CITED 


Interstate   Commerce   Commission   v. 

Brimson,  333. 
Iron  &  Steel  Co.  v.  Nichols,  13,  14. 
Iron  Molders'  Union  v.  AUis-Chalmers 

Co.,   219,   221,   263,   273,  276,   277, 

279,  280,  290,  313,  322. 
Irvine  v.  Flint  &  P.  M.  R.  Co.,  152. 
Isaacs  V.  McAndrew,  15. 
Ives  V.  South  Buffalo  R.  Co.  (2  cases), 

196,  197. 

Jackson  v.  School  District,  26. 

Jackson  v.  State  (2  cases),  40,  116. 

Jacobs  V.  Cohen,  237,  240,  243,  303. 

Jacobs,  In  re,  5. 

James  v.  Allen  Co.,  26. 

Jarvis  v.  Peck,  13. 

Jeffersonville  R.  Co.  v.  Rogers,  203. 

Jenkins  v.  Fowler,  71. 

Jennings  v.  Camp,  12. 

Jensen  v.  Cooks'  &  Waiters'  Union,  278. 

Jersey  City  Printing  Co.  v.  Cassidy,  5, 
229,  274,  276,  287,  308,  316,  318,  319. 

Jetton-Dekle  Lumber  Co.  v.  Mather, 
227. 

Jewell  V.  Bolt  &  Nut  Co.,  144. 

J.  F.  Parkinson  Co.  v.  Building  Trades 
Council,  233,  274,  284,  287,  291. 

John  C.  Lewis  Co.  v.  Scott,  26. 

Johnson  v.  Charleston  &  S.  R.  Co.,  144. 

Johnson  v.  Goodyear  Mining  Co.,  53, 
61,  67. 

Johnson  v.  Philadelphia  R.  Co.,  147. 

Johnson  v.  Southern  P.  R.  Co.,  98,  135. 

Johnson,  Lytle  &  Co.  v.  Spartan  Mills, 
66. 

Johnston  v.  Barrills,  64. 

Joliet  Mfg.  Co.  V.  Dice,  74. 

Jonas  Glass  Co.  v.  Glass  Bottle  Blow- 
ers (2  cases),  221,  278,  281,  287,  315, 
319,  322. 

Jones  V.  Caramel  Co.,  129. 

Jones  V.  E.  Van  Winkle  Gin  &  Ma- 
chine Works,  273,  277. 

Jones  v.  Hay,  1. 

Jones  V.  Jincey,  1. 


Jones  V.  Judd,  31. 

Jones  V.  Leslie,  5,  35. 

Jones  V.  Maher,  299,  304. 

Jones  V.  Seaboard  Air  Line  R.  Co.,  202. 

Jones  V.  Trinity  Parish  Vestry,  11. 

Jordahl  v.  Hayda,  288,  307. 

Jordan  v.  State,  66. 

Josma  V.  Western  Steel  Car  &  Foundry 

Co.,  270. 
Joyce  V.  Gt.  Northern  R.  Co.,  294,  295. 
Juniata  Limestone  Co.  v.  Fagley,  121. 
Jupiter  Coal  Min.  Co.  v.  Mercer,  93, 

128. 

Kansas  City,  M.  &  6.  R.  Co.,  c. Burton, 

170. 
Kansas  P.  R.  Co.  v.  Peavey,  145,  146. 
Kansas  P.  R.  Co.  v.  Roberson,  9. 
Karges  Furniture  Co.  v.  Woodworkers' 

Union,  220,  221,  273,  277,  279,  313, 

322. 
Kealey  v.  Faulkner,  223,  226,  227,  232, 

251. 
Keane  v.  Boycott,  38. 
Keedy  v.  Long,  27. 
Keefe  v.  People,  78. 
Keenan  v.  New  York,  L.  E.  &  W.  R. 

Co.,  161. 
Keith  V.  Kellermann,  13. 
Kellogg  V.  Insurance  Co.,  10. 
Kelly  V.  Wheel  Co.,  10. 
Kelly\Tlle  Coal  Co.  v.  Harrier,  66,  67. 
Kellyville  Coal  Co.  v.  Petraytis,  122. 
Kelly ville  Coal  Co.  v.  Strine,  129. 
Kentucky  Coal  Min.  Co.  v.  Mattingly, 

69. 
Kentucky  C.  R.  Co.  v.  Gastineau,  177. 
Kiley  v.  Chicago,  etc.,  R.  Co.,  153. 
Kimmer  v.  Weber,  161. 
King  V.  Western  Union  Tel.  Co.,  263. 
King,  Ex  parte,  99. 

Kinnan  v.  Fidelity  &  Casualty  Co.,  181. 
Kirby-Dennis  Co.,  In  re,  64. 
Kirk  V.  Hartman,  10. 
Kirkham  v.  Wheeler-Osgood  Co.,  104. 
Kissam  v.  Printing  Co.,  243,  244. 


LIST  OF  CASES  CITED 


355 


Klatt  V.  Lumber  Co.,  93,  128. 
Knisley  v.  Pratt,  93,  95,  129,  141. 
Knoxville  Iron  Co.  v.  Harbison,  66. 
Knudsen  v.  Benn,  268,  272,  278. 
Koehler  v.  Buhl,  28. 
Kootenai  County  v.  Hope  Lumber  Co., 

206. 
Koplitz  V.  Powell,  29,  30. 
Krause  v.  Morgan,  128. 
Krause  v.  Sander,  233. 

Laccy  v.  Getman,  31. 

Lake  Shore  &  M.  S.  R.  Co.  v.  Baldwin, 
117. 

Lake  Shore  4  M.  S.  R.  Co.  v.  Spangler, 
144. 

Lambert  v.  Hartshorne,  26. 

Lancaster  v.  Hamburger,  37. 

Landgraf  v.  Kuh,  129. 

Lang  V.  Simmons,  45. 

Langan  v.  Tyler,  1,  177. 

Langham  v.  State,  39. 

Langmade  v.  Olean  Brewing  Co.,  238. 

Larabee  v.  New  York,  etc.,  R.  Co.,  91. 

Larson  v.  Haglin,  174. 

Latham  v.  Barwick,  15,  17. 

Lawlor  v.  Merritt  &  Son,  248. 

Lawrence  v.  Gullifer,  3. 

Lawrence  v.  Rutland  R.  Co.,  52,  67. 

L.  D.  Willcutt  &  Sons  Co.  v.  Brick- 
layers, 214,  215,  229,  236,  320. 

Leary  v.  Boston  &  A.  R.  Co.,  144. 

Leas  V.  Pennsylvania  Co.,  147. 

Lcatherberry  v.  Odell,  26. 

Leathers  v.  Tobacco  Co.,  104. 

Lcop  V.  St.  Louis,  etc.,  R.  Co.,  54,  67. 

Lees  V.  United  States,  120. 

Lohigh  Valley  Coal  Co.  v.  Jones,  161. 

Lonahan  v.  Pittston  Coal  Min.  Co.,  104. 

Lennon  v.  Lake  Shore,  etc.,  R.  Co.,  305. 

Lennon,  Ex  parte,  311. 

Lennon,  In  re,  305,  311,  314,  328. 

Levin  v.  Cosgrove,  233,  297. 

Lewis  V.  Board,  241. 

Lewis  r.  Tilton,  224. 

Lewis  Co.  V.  Scott,  26. 


Lindsay  v.   Montana  Fed.   of  Labor, 

257,  283,  288,  291,  309. 
Lippus  V.  Watch  Co.,  27. 
Little  Miami  R.  Co.  v.  Stevena,  163. 
Little  Rock  &  Ft.  Scott  R.  Co.  v.  Eu- 

banks,  144. 
Litzenberg  v.  Trust  Co.,  64. 
Lloyd  V.  Loring,  225. 
Lloyd  r.  R.  Co.,  75,  77. 
Local  Union  Textile  Workere  r.  Bar- 
rett, 220. 
Lochner  v.   New  York,   4,    6,    8,   77, 

78. 
Loewe  v.  Cal.  Fed.  of  Labor,  288,  309, 

313. 
Loewe  v.  Lawlor  (2  cases),  214,  216, 

217,  255,  274,  287,  288,  293,  321. 
Lohae  Patent  Door  Co.  r.  Fuelle,  251, 

257,  287,  289,  318,  321. 
London  Guarantee  Co.  v.  Horn,  36. 
Longshore  Printing  Co.  r.  HowelJ,  229. 
Loos  V.  Brewing  Co.,  28,  30. 
Lord  V.  Goldberg,  9. 
Lore  V.  Manufacturing  Co.,  104. 
Louis  V.  Elfelt,  32. 
Louisville  R.  Co.  v.  Hibbitt,  158. 
Louisville  &  N.  R.  Co.  v.  Baldwin,  113. 
Louisville  &  N.  R.  Co.  v.  Miller,  138. 
Louisville  &  N.  R.  Co.  v.  Woods,  151. 
Louis\alle.  etc.,  R.  Co.  v.  OfiFutt,  9. 
Low  V.  Rees  Printing  Co.,  76. 
Low  Moor  Iron  Co.  v.  Bianca's  Adm'r., 

122. 
Lucas,  Ex  parte,  1 14. 
Lucke  V.  Clothing  Cuttcra,  35,  216,  258. 
Lukic  V.  Southern  P.  R.  Co.,  159,  162, 

167. 
Lunian  v.  Hitchcns  Bros.  Coal  Co.,  70. 
Lumlcy  v.  Gyo,  35,  38. 
Lumloy  v.  Wagner,  13. 
Luphcr  V.  Atchison.  T.  A  8.  F.  R.  Co., 

117. 
Luske  c.  Hotchkiaa.  2,  73,  75. 
Lynch  v.  Metropolitan  E.  R.  Co.,  202. 
Lyon  V.  Callopy.  56. 
Lyon  V.  Pollard,  27. 


356 


LIST  OF  CASES  CITED 


McCall  V.  Wright,  13. 

McCarthy  v.  Guild,  42. 

McCauU  V.  Braham,  13. 

McClurg  V.  Kingsland,  74. 

McCord    V.    Thompson-Starrett    Co., 

245,  252. 
McCormick,  In  re,  325. 
McCown,  Ex  parte,  325. 
McCracken  v.  Hair,  3. 
McDermott  v.  Iowa  Falls,  etc.,  R.  Co., 

117. 
McDonald  v.  Illinois  C.  R.  Co.,  34. 
McDonald  v.  State,  112. 
McGrath  v.  Merwin,  46. 
McGuire  v.  R.  Co.,  148. 
Mcintosh  V.  State,  18. 
McKay  v.  Hand,  131. 
McLean  v.  Blue  Point  G.  M.  Co.,  161. 
McLean  v.  Publishing  Co.,  26. 
McLean  v.  State,  51. 
McLellan  v.  Young,  46. 
McMahon  ti.  Rauhr,  224. 
McMillan  v.  Coal  &  Coke  Co.,  110. 
McMillan  v.  Spider  Lake  S.  &  L.  Co.,  122. 
McMillan  v.  Vanderlip,  12,  15. 
McMuUen  v.  Dickinson  Co.,  24. 
McPhee's  Estate,  In  re,  31. 
McVey  v.  Brendel,  247,  248. 
Macauley  v.  Tierney,  37. 
Mackall  v.  Ratchford,  327. 
Mackenzie  v.  Minis,  28. 
Magarahan  v.  Wright,  10. 
Mahoney  v.  Smith,  269. 
Main  v.  Field,  57. 
Malone  v.  Hathaway,  164. 
Mann  v.  Oriental  Print  Works,  166. 
Manowsky  v.  Stephan,  61. 
Marble  Co.  v.  Ripley,  13. 
March  v.  Bricklayers'  Union,  215,  229, 

240,  266,  286,  287,  301. 
Marier  v.  R.  Co.,  202. 
Marino  ».  Lehmaier,  104. 
Marriner  v.  Roper  Co.,  65. 
Marshall  v.  Norcross,  91. 

Marshall   <fe   Bruce   Co.   t.   Naahville, 

241,  250. 


Martell  v.  White,  214,  215,  236,  246, 

286. 
Martin  v.  Atchison,  T.  &  S.  F.  R.  Co., 

178. 
Martin  v.  Chicago,  R.  I.  <fe  P.  R.  Co., 

141. 
Martin  v.  Insurance  Co.,  10,  11. 
Martin  v.  N.  P.  B.  Association,  224, 

232. 
Marx  V.  Miller,  30,  31. 
Marx  &  Haas  Jean  Clothing  Co.   v. 

Watson,  288,  309. 
Maryland  Steel  Co.  v.  Marney,  152. 
Massie  v.  Cessna,  60. 
Master   Horseshoers'   Ass'n.   v.   Quin- 

livan,  217. 
Master  Stevedores'  Ass'n  r.  Walsh,  213. 
Mather  v.  Rillston,  126. 
Mathesius  v.  R.  Co.,  25. 
Matlock  V.  Williamsville,  etc.,  R.  Co., 

117. 
Matthews  v.  People,  208. 
Mattison  v.  R.  Co.,  294. 
Mayer    v.    Journeymen    Stonecutters, 

219,  264,  266,  314. 
Maynard  v.  Corset  Co.,  10,  25. 
Medlin  Milling  Co.  v.  Boutwell,  202. 
Meehan  v.  Spiers  Mfg.  Co.,  163,  178. 
Merrill  v.  Western  Union  Tel.  Co.,  25. 
Mexelbaum  v.  Limberger,  27. 
Mexican  Amole  Soap  Co.  v.  Clark,  27. 
Meyers  v.  City  of  New  York,  46. 
Miller  v.  City  of  Des  Moines,  250. 
Miller  v.  Cuddy,  3. 
Miller  v.  Missouri  P.  R.  Co.,  163. 
Mills  V.  United  States  Printing  Co.,  241, 

279,  283. 
Mining  Co.  v.  Cullins,  61. 
Minneapolis  &  St.  L.  R.  Co.  v.  Herrick, 

146. 
Minot  V.  Snavely,  202. 
Missouri,  K.  &  T.  R.  Co.  v.  Wood,  144. 
Missouri  P.  R.  Co.  v.  Brinkmeier,  130. 
Missouri  P.  R.  Co.  v.  Castle,  98,  153. 
Missouri  P.  R.  Co.  r.  Flour  Mills  Co., 

91. 


LIST  OF  CASES  CITED 


357 


Missouri  P.  R.  Co.  v.  Mackey,  90,  171, 

196. 
Mitchell  V.  Pennsylvania  Co.,  145. 
Mobile  &  B.  R.  Co.  v.  Hoi  born,  171. 
Mobile,  J.  &  K.  C.  R.  Co.  v.  Hicks,  139. 
Mobile  &  M.  R.  Co.  v.  Smith,  163. 
Mobile,  etc.,  R.  Co.  v.  Clanton,  199. 
Mooney  v.  Conn.  River  Lumber  Co.,  133. 
Moore  v.  Central  Foundry  Co.,  26. 
Moore  v.  Wabash,  etc.,  R.  Co.,  130. 
Moores  v.  Bricklayers'  Union,  301. 
Moran  v.  Dickinson,  81,  117. 
Moran  v.  Dunphy,  36. 
More  V.  Bennett,  216,  227. 
Morgan,  In  re,  77. 
Morgan  v.  Congdon,  61. 
Morris  V.  Neville,  40. 
Morris  Coal  Co.  v.  Donley,  90. 
Morton  v.  Detroit,  etc.,  R.  Co.,  132. 
Moses  «.  Travelers'  Ins.  Co.,  181. 
Mosgrove  v.  Zimbleman  Coal  Co.,  128. 
Moss  V.  Decatur  Land,  etc.,  Co.,  10. 
Mt.  Vernon  Woodberry  Duck  Co.  t>. 

Insurance  Co.,  184. 
Mulhall  V.  Fallon,  122. 
Mullaly  V.  Austin,  26. 
Mullort).  Oregon,  5,  101,  103. 
Mumford  v.  Chicago,  R.  I.  &  P.  R.  Co., 

146. 
Murphy  Hardware  Co.  v.  Southern  R. 

Co.,  269. 
Murrell's  Case,  39. 
Mutual  Loan  Co.  v.  Martell,  69. 
My  Maryland  Lodge  v.  Adt.,  263,  281, 

283,  287,  288,  30G. 
Myrup  V.  Friedman,  249. 

Naglcbaugh  v.  Mining  Co.,  65. 

Narramoro  v.  Cleveland,  etc.,  R.  Co., 
93,  94,  141,  145. 

Nashville.  C.  A  St.  L.  R.  Co.  v.  Ala- 
bama, 89.  113. 

National  Fireproofing  Co.  v.  Hunting- 
ton, 61. 

National  Fireproofing  Co.  v.  Mason 
Builders,  236.  244,  262,  264. 


National  Protective  Ass'n.  v.  Gum- 
ming, 213,  236,  243,  244,  257,  261, 
262,  264,  266,  276,  284,  296, 303, 
317,  320. 

Naylor  v.  Iron  Works,  32. 

New  England  R.  Co.  v.  Conroy,  155. 

New  Pittsburg  Coal  &  Coke  Co.  v. 
Peterson,  156. 

New  York  Central,  etc.,  R.  Co.  ». 
Williams,  53. 

New  York  City  v.  Miln,  93. 

New  York,  C.  &  St.  L.  R.  Co.r.Schaef- 
fer,  5,  33. 

New  York,  L.  E.  &  W.  R.  Co.  r.  Bell, 
162. 

Newcomb  v.  Boston  Protective  Dept., 
81. 

Newman,  Ex  parte,  80. 

Newton  v.  Pope,  199. 

Niagara  Fire  Ins.  Co.  r.  Cornell,  263. 

Nickelson  v.  Stryker,  42. 

Nimmo  v.  Walker,  1. 

Nolan  V.  Danks,  17. 

Norfolk  &  W.  R.  Co.  v.  Bondurant,  1 17. 

Norfolk  &  W.  R.  Co.  r.  Commonwealth, 
80. 

Northern  P.  R.  Co.  v.  Dixon,  154. 

Northern  P.  R.  Co.  v.  Hambly,  158. 

Northern  P.  R.  Co.  v.  Whalen,  43. 

Norton  v.  Brooklinc,  30. 

Norton  v.  Cowell,  10. 

Oakes  v.  Moore,  61. 

O'Brien  v.  Chicago  N.  W.  R.  Co.,  149. 

O'Brien  v.  Musical  M.  P.  U.,  219,  226, 

227,  228,  251. 
O'Brien  c.  People.  243, 267, 323, 324, 329. 
O'Connell  v.  Lumber  Co.,  67. 
O'Connor  v.  Armour  Packing  Co.,  133. 
O'Connor  v.  Briggs,  31. 
O'Connor  v.  Walter,  67. 
Old  Dominion  S.  S.  Co.  c.  McKcDDa, 

216.  ."^01. 
Olmsted  V.  Bach,  26. 
O'Maley  r.  South   BostOD  Gas  Light 

Co.,  91,  93,  145. 


358 


LIST  OF  CASES  CITED 


O'Neil  V.  Behanna.  273,  274,  301,  304. 
O'Reilly  v.  Pennsylvania  Co.,  148. 
Orient  Ins.  Co.  v.  Daggs,  68. 
Osborne  v.  Morgan,  199. 
Otis  Steel  Co.  v.  Iron  Molders'  Union, 

274,  277,  278,  319,  321. 
Otto  V.  Journeymen  Tailors,  228,  230. 
Owens  V.  Baltimore  &  O.  R.  Co.,  147. 
Owens  V.  Laurens  Cotton  Mills  Co.,  105. 
Owens  V.  State,  60. 
Oxley  Stave  Co.  v.  Coopers*  Int.  Union, 

262,  287. 

Pain  V.  Sample,  223. 

Palmer  v.  Van  Santvoord,  64. 

Park  V.  Bushnell,  29. 

Parker  v.  Lumber  Co.,  97. 

Parker  v.  Piatt,  3. 

Parkinson  Co.  v.  Building  Trades  Coun- 

cU,  233,  274,  284,  287,  291. 
Parrott,  In  re,  119. 

Patch  Mfg.  Co.  V.  Capeless,  220,  222, 304. 
Patch  Mfg.  Co.  V.  International  Ass'n, 

301,  304. 
Patnote  v.  Sanders,  30. 
Patterson  v.  Building  Trades  Council, 

328. 
Patterson  v.  District  Council,  220,  222, 

329. 
Patterson  v.  Pittsburg  &  C.  R.  Co.,  173. 
Patterson  v.  State,  21. 
Patterson  v.  The  Eudora,  23. 
Patton  V.  Texas  P.  R.  Co.,  139. 
Pauley  v.  Steam  Gauge  &  Lantern  Co., 

98. 
Payne  v.  Western  &  Atl.  R.  Co.,  14,  37, 

71,  72. 
Peabody  v.  Norfolk,  13. 
Pearson  v.  Steamship  Co.,  180. 
Peel  Splint  Coal  Co.  v.  State,  66,  70. 
Pembina   Min.,   etc.,   Co.  v.   Pennsyl- 
vania, 67,  68. 
Pennington  v.  Lumber  Co.,  47. 
Pendergast  v.  Yanders,  64. 
Pennsylvania  Co.  v.  Chapman,  147. 
Pennsylvania  Co.  t).  City  of  Chicago,  271. 


Pennsylvania'Co.  v.  Dolan,  9. 

Pennsylvania  Co.  v.  Roney,  152. 

Peonage  Cases,  22,  39. 

People  V.  Beattie,  1 14. 

People  V.  Bellet,  79. 

People  V.  Butler  St.  Foundry  Co.,  263. 

People  V.  City  of  Buffalo,  52. 

People  V.  Coler  (2  cases),  49,  119. 

People  V.  Court,  325. 

People  V.  Detroit  United  Ry.,  207. 

People  V.  Dwyer,  325. 

People  V.  Erie  R.  Co.,  77. 

People  V.  Ewer,  101,  102. 

People  V.  Fisher.  248. 

People  V.  Grout,  79. 

People  V.  Hawkins,  123. 

People  V.  Lochner,  78. 

People  V.  McFariin,  290,  292. 

People  V.  Marcus,  234. 

People  V.  Marx,  5. 

People  V.  Melvin,  267. 

People  V.  Metz,  8,  50,  79. 

People  V.  Musical  M.  P.  U.,  228,  23L 

People  V.  Myers,  10. 

People  V.  Remington,  64. 

People  V.  Smith  (3  cases),  93,  216,  263. 

People  V.  Walsh,  216. 

People  V.  Warden,  210. 

People  V.  Warren,  118. 

People  V.  Williams,  102. 

Perkins  v.  Heert,  248. 

Perkins  v.  Pendleton,  297. 

Persons  v.  Bush  Terminal  Co.,  95. 

Peters  v,  George,  167. 

Petit  V.  Minnesota,  79,  80. 

Phelan  v.  Stiles,  202. 

Philadelphia  p.  McLinden,  119. 

Philadelphia  &  R.   R.  Co.  v.  Derby, 

203. 
Philadelphia  &  R.  R.  Co.  v.  Hughes, 

133, 
Phoebe  v.  Jay,  31. 

Pickett  V.  Fidelity  &  Casualty  Co.,  182. 
Pickett  V.  Walsh,  214,  221,  222,  229, 

257,  261,  262,  264,  268,  276,  316,  320. 
Pierce  v.  R.  Co.,  9,  25. 


LIST   OF  CASES  CITED 


359 


Pierce  v.  Stablemen's  Union,  216,  264, 

271,  272,  278,  289,  290,  291,  307,  315, 

321. 
Pierce  v.  Van  Dusen,  146. 
Pingree  r.  State  Court  of  Mediation, 

335. 
Pioneer,  The,  46. 
Pitcher  v.  New  York,  etc.,  R.  Co.,  93, 

128. 
Pittsburg,   C.   C.  &  St.  L.   R.   Co.  v. 

Chicago,  271. 
Pittsburg,   C.   C.  &  St.  L.   R.  Co.  v. 

Montgomery,  146. 
Pittsburg,  etc..  R.  Co.  v.  State,  91. 
Pixler  V.  Nichols,  12. 
Plant  V.  Woods,  36,  244,  262,  267,  276, 

296,  316,  320. 
Pokanoket,  The,  11. 
Poli  B.  Coal  Co.,  111. 
Polk  V.  Daly,  24. 
Pope  Motor  Car  Co.  v.  Keegan,  272, 

279,  313,  314,  322. 
Port  of  Mobile  v.  R.  Co.,  308. 
Potter  V.  Baltimore  &  O.  R.  Co.,  149. 
Powell  V.  Sherwood,  146. 
Price  V.  People,  210. 
Purcell  V.  Southern  R.  Co.,  166. 
Purdy  V.  Rome,  etc.,  R.  Co.,  145. 
Purington  v.  Hinchcliff,  286,  287,  292, 

302,  304. 
TuTvia  V.  Brotherhood,  216,  223,  262, 

286,  299,  302,  304,  313,  317,  320.  321. 

Quackenbush  v.  R.  Co.,  98. 

Quinn  v.  Leathern,  274. 

Quinn  v.  New  York,  etc.,  R.  Co.,  146. 

R.  r.  Blackburn,  226. 
Railroad  Co.  v.  State  Board  of  Arbi- 
tration. 336. 
Railway  Co.  v.  Buck.  81. 
Railway  Co.  r.  Greenwood,  72. 
Railway  Co.  v.  Towboat  Co.,  81. 
Ramsden  r.  B.  &  A.  R.  Co..  203. 
Ramsey  v.  People,  51. 
Randolph  v.  Supply  Co.,  61. 


Ray  croft  v.  Taintor.  261. 

Raynea  v.  Kokomo  Ladder,  etc.,  Co., 

64. 
Read  v.  Boston  &  A.  R.  Co.,  81. 
Reed  V.  Stockmyer,  130.  166. 
Reid  Ice  Cream  Co.  r.  Stephens.  14. 
Renaud  v.  State  Board  of  Mediation, 

335. 
Renlund  v.  Mining  Co.,  122. 
Republic  Iron  &  Steel  Co.  r.  State,  63. 
Rescue.  The,  1 1 . 
Reynolds  v.  Black.  64. 
Reynolds  r.  Da%-is,  245,  251.  267,  268, 

274,  276.  320. 
Reynolds  v.  Everett.  307. 
Reynolds  c.  Merchants'  Woollen  Co., 

132. 
Rhoades  v.  Chesapeake  &  O.  R.  Co., 

27.  28. 
Rhode  r.  United  States,  220,  226. 
Rhodes  r.  Granby  Cotton  Mills,  294, 

295. 
Rhodes  V.  Sperry,  etc.,  Co..  95. 
Richards,  Ex  parte,  259. 
Richardson  v.  Kaufman.  56. 
Richardson  r.  Thurber,  63. 
Richmond  v.  Judy,  220,  224. 
Richmond  &  D.  R.  Co.  v.  Elliott.  132. 
Richmond  &  D.  R.  Co.  r.  Jones,  144. 
Richmond  &  D.  R.  Co.  v.  Rudd,  173. 
Ricks  r.  Yates.  12. 
Riding  v.  Smith,  42. 
Riley,  Ex  parte,  18. 
Ritchie  v.  People,  102. 
Ritchie  &  Co.  r.  Wayman,  103. 
Roberts  r.  Swift,  1. 
Robertson  v.  Baldwin.  23,  24. 
Robinson  r.  Cushmaii,  1. 
Robinson,  Ex  parte,  323. 
Rocky    Mountain    Telephone    Co.    v. 

Montana  Fed.  of  Labor.  289. 
Rocsnor  v.  Hermann,  144. 
Rogers  r.  Evnrts,  275.  276,  307. 
Rogers  r.  Smith,  42. 
Rohlf  r.  Kasomeier.  251.  253. 
Roquemore  &  Hall  v.  Mitchell  Broa..  13. 


360 


LIST  OF  CASES  CITED 


Rosa  V.  American  Emp.  Liability  Ins. 

Co.,  182. 
Royal  V.  Grant,  47. 
Rubin  V.  Cohen,  47. 
Ruddy  V.  Journeymen  Plumbers,  298. 
Runt  V.  Herring,  145. 
Russ  V.  Wabash  W.  R.  Co.,  167. 
Ryalls  V.  Mechanics'  Mills,  170. 
Ryan  v.  City  of  New  York,  49,  78. 

Sailors'   Union  v.  Hammond  Lumber 

Co.,  323. 
St.  Louis  V.  doner,  282,  322. 
St.  Louis,  A.  &  T.  R.  Co.  v.  Torrey,  166. 
St.  Louis,  A.  &  T.  R.  Co.  v.  Triplett, 

137. 
St.  Louis,  A.  &  T.  R.  Co.  v.  Welch,  158. 
St.  Louis  Cordage  Co.  v.  Miller,  145. 
St.  Louis  &  S.  F.  R.  Co.  v.  Delk,  130. 
St.  Louis  Consol.  Coal  Co.  v.  Illinois, 

90,  93. 
St.   Louis  Dressed  Beef,   etc.,   Co.  v. 

Casualty  Co.,  183. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  McCler- 

kin,  64. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Math- 
ews, 9,  29. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Paul,  54, 

67. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor, 

99,  128,  131. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  White,  92. 
St.  Louis  S.  W.  R.  Co.  v.  Hixon  :36, 

294,  295. 
St.  Louis  S.  W.  R.  Co.  v.  Thompson, 

231,  232,  269. 
St.   Paul   Typothetae  v.   Bookbinders' 

Union,  219,  220,  222,  224. 
Salter  v.  Howard,  38. 
San  Antonio  &  A.  P.  R.  Co.  t».  Wilson, 

54. 
Sands  v.  Potter,  32. 
Sanning  v.  Cincinnati,  59. 
Santa  Clara  Co.  v.  Southern  P.  R.  Co., 

67. 
Savannah,  etc.,  R.  Co.  v.  Willett,  25. 


Savings  Bank  r.  City  of  Clay  Centre, 

312. 
Scarano  c.  Lemlein,  239. 
Schaezlein  v.  Cabaniss,  92. 
Schlang    v.     Waist     Makers,     320. 
Schmalz  v.  Wooley,  248. 
Schmoll  V.  Lucht,  60. 
Schneider  v.  Local  Union,  216,  231, 298, 

304. 
Schurr  v.  Savigny,  76. 
Scott,  In  re,  63. 
Screwmen's  Ass'n.  v.  Benson,  219,  227, 

230. 
Seattle  v.  Smyth,  79. 
Seattle  Brewing  Co.  v.  Hansen,  309. 
Sedgwick  v.  Illinois  C.  R.  Co.,  136. 
Seeleyville  Coal  &  M.  Co.  v.  McGlosson, 

54,  60. 
Senate  BiU  No.  615,  In  re,  186. 
Shaffer  v.  Union  Min.  Co.,  68. 
Shannon  v.  Union  R.  Co.,  82. 
Shaver  v.  Ingham,  29. 
Shaver  v.  Lumber  Co.,  97. 
Shaver  v.  Pennsylvania  Co.,  146. 
Shay  V.  American  Iron  &  Steel  Co.,  269. 
Sherry  v.  Perkins,  306,  307,  321. 
Shields  v.  Yonge.  105. 
Shine  v.  Fox  Bros.  Mfg.  Co.,  286,  288, 

321,322. 
Shipwrights',  etc.,  Ass'n.  v.   Mitchell, 

219. 
Short  V.  Bullion  Beck  Min.  Co.,  46,  75. 
Shortall  v.  Bridge,  etc.,  Co.,  66,  70. 
Shuler  v.  Omaha,  etc.,  R.  Co.,  139. 
Silver  State  Council  v.  Rhodes,  217, 

317. 
Silverman,  In  re,  32. 
Simers  v.  Halpern,  240. 
Simon  v.  Bloomingdale,  203. 
Singer  Mfg.  Co.  v.  Fleming,  57,  60. 
Sinsheimer  v.  United  Garment  Work- 
ers, 290. 
Slade  V.  Arnold,  81. 
Slaughter  House  Cases,  316. 
Slomka,  In  re,  64. 
Small  V.  Hammes,  63. 


LIST  OF  CASES  CITED 


361 


Smith  V.  Alabama.  77,  91,  112. 

Smith  V.  Dayton  Coal  &  Iron  Co.,  111. 

Smith  V.  Foran,  204. 

Smith  V.  R.  Co.,  9. 

Smith  V.  Speed,  324. 

Smith  V.  Woolf,  90. 

Smith's  Adm'r.  v.  Coal  &  Iron  Co.,  104. 

Smithwick  v.  Hall  &  U.  Co.,  150. 

Snow  V.  Wheeler,  226. 

Snyder  v.  Wright,  47. 

Solarz  r.  Manhattan  R.  Co.,  81. 

Solomons  v.  United  States,  74. 

Sommer  v.  Carbon  Hill  Coal  Co.,  90, 

129. 
Sourae  v.  Marshall,  223. 
Southern  Pacific  Co.,  In  re,  338. 
Southern  R.  Co.  v.  Barr,  162. 
Southern  R.  Co.  v.  Fulford,  65. 
Southern  R.  Co.  v.  Machinists'  Local 

Union,  273. 
Spencer,  Ex  parte,  102. 
Stagg  V.  Edward  Western  Tea  &  Spice 

Co.,  131,  175. 
Starnes  v.  Manufacturing  Co.,  102. 
State  V.  Bishop,  248,  249. 
State  V.  Briggs,  114. 
State  V.  Brown  4  Sharpe  Mfg.  Co.,  62, 

67. 
State  V.  Buchanan,  103,  259. 
State  V.  Cantwell,  77. 
State  V.  Chapman,  20. 
State  V.  Chicago,  etc.,  R.  Co.,  77. 
Stater.  Cleveland,  etc.,  R.  Co.,  113. 
State  v.  Dalton,  258,  259,  266,  298. 
State  V.  Dolan,  79. 
State  V.  Donaldson,  264,  274,  320. 
State  V.  Dyer,  267. 
State  V.  Easterlin,  20. 
State  V.  Fire  Creek  Coal  Co.,  70. 
Stater.  Gardner,  114. 
State  r.  Glidden,  258.  289. 
State  V.  Goodnight.  308. 
State  r.  Goodwill,  67. 
State  r.  Granneman.  79. 
State  r.  Hagan.  248. 
State  V.  Hall,  82. 


State  r.  Haun.  58.  67. 

State  r.  Holland.  250. 

State  r.  Hurlburt.  59. 

State  r.  Hyman,  89,  93, 

State  r.  Johnston,  334. 

State  F.  Judge,  312. 

State  r.  Julow,  234. 

State  r.  Justus,  295. 

State  r.  Kreutzberg,  234. 

State  r.  Loomis,  67. 

State  r.  McGee,  300. 

Stater.  McMahon,  112. 

State  r.  Missouri  P.  R.  Co.,  77. 

State  r.  Missouri  Tie  &  Timber  Co.,  6, 

66. 
State  V.  Montgomery,  248. 
State  r.  MuUer,  103. 
Stater.  Murlin,  109,  172. 
State  r.  Murray,  21. 
State  V.  Napier,  210,  211. 
State  r.  Northern  P.  R.  Co.,  77. 
State  r.  Paint  Rock  Coal  &  Coke  Co., 

66. 
State  r.  Peel  Splint  Coal  Co.,  51. 
State  r.  Roberson,  211. 
State  V.  Ryan,  333. 
State  r.  Sharplcss,  114. 
State  r.  Shepherd,  324. 
Stater.  Shorcy,  101,  102. 
Stater.  Smith,  113.  114. 
State  r.  Standard  Oil  Co.,  68. 
State  V.  Stockford,  246,  262,  267,  274, 

300,  320. 
State  r.  Thompson,  77. 
State  r.  Toole,  241. 
State  r.  Vann,  18. 
State  r.  Van  Pelt,  274.  284. 
State  r.  Vickens.  89.  93. 
Stater.  Walker.  115. 
State  r.  Whitakcr.  90. 
State  r.  Williams.  20. 
Stater.  Zeno,  114. 
Steamboat  Co.  r.  Brockett,  203. 
Stearns  r.  Ontario  Spinning  Co.,  139. 
Stearns  v.  R.  Co..  9. 
Steen  r.  St.  Paul  &  D.  R.  Co..  138. 


362 


LIST  OF  CASES  CITED 


Btehle  v.  Jaeger  Automatic   Machine 

Co.  (2  cases),  104,  105,  106. 
Steinert  «fe  Sons  Co.  v.  Tagen,  270,  323. 
Bteinert  r.   United  Brotherhood,   225, 

228. 
Stephens  v.  Hannibal  &  St.  J.  R.  Co., 

163. 
Stevens  v.  R.  Co.,  199. 
Stevenson  v.  Newnham,  37. 
Stewart  v.  Ferguson,  91. 
Stewart  v.  Thayer,  81. 
Stockbridge  v.  Crooker,  3. 
Stodden  v.  Manufacturing  Co.,  175. 
Stone  V.  Bancroft,  15,  26,  73. 
Stone  V.  Goss,  13. 

Stone's  Adm'r.  v.  Union  P.  R.  Co.,  144. 
Storey  v.  Transportation  Co.,  73. 
Street  v.  Varney  Electric  Supply  Co., 

49. 
Stryker,  In  re,  46. 

Sturgiss  V.  Atlantic  C.  L.  R.  Co.,  149. 
Suddath  v.  Gallaher,  64. 
Sullivan  v.  Western  Union  Tel.  Co.,  269. 
Sutton  V.  Bakery  Co.,  129. 
Swann  v.  Swann,  80. 
Sweeny  v.  Gulf,  etc.,  R.  Co.,  167. 
Sweeny  v.  Hunter,  67. 
Swenson  v.  Osgood  &  Blodgett  Co.,  97. 

Tarbell  v.  Rutland  R.  Co.,  145. 

Tarpley  v.  State,  39,  40. 

Tatterson  v.  Manufacturing  Co.,  11. 

Taylor  v.  Blanchard,  13. 

Telephone  Co.  v.  Kent,  310. 

Telfer  v.  Lambert,  81. 

Templar  r.  State  Board,  115,  120. 

Ten-hour  law,  In  re,  67,  78. 

Tennessee  Coal,  etc.,  Co.  v.  Pierce,  10. 

Terre  Haute  &  I.  R.  Co.  v.  Baker,  55. 

Terry,  Ex  parte,  323. 

Texas  P.  R.  Co.  v.  Reed,  167. 

Texas  M.  R.  Co.  v.  Morris,  9. 

Thacker  Coal  &  Coke  Co.  v.  Burke,  301. 

Thomas   v.    Cincinnati,    etc.,    R.    Co., 

275,  285,  288,  323,  325. 
Thomas  v.  Walnut  Land  Co.,  46. 


Thompson   r.   Locomotive   Engineen, 

228. 
Thompson  v.  Phelan,  51. 
Thorpe  r.  White,  16.  51. 
Thum  V.  TIoczynski,'13,  14. 
Tichenor  r.  Bruckheimer,  16. 
Tillar  v.  Reynolds,  203. 
Tire  Repair  Co.  v.  Price,  41. 
Toland  v.  Stevenson,  32. 
Toledo,  etc.,  R.  Co.  v.  Long,  53,  67. 
Toledo,  etc.,  R.  Co.  v.  Pennsylvania 

Co.,  259,  272,  289,  304,  305,  320,  321, 

328. 
Toney  v.  State,  22. 
Toronto,  The,  269. 
Townsend  r.  State,  288. 
Traction  Co.  v.  Brennan,  61. 
Tracy  v.  Banker,  248,  249. 
Tubbs  V.  Cummings  Co.,  10. 
Tucker  v.  Coal,  etc.,  Co.,  10. 
TuUis  V.  R.  Co.,  196. 
Tuttle  V.  Detroit,  etc.,  R.  Co.,  83,  127, 

143. 
Tyler  Cotton  Press  Co.  v.  Chevalier,  26. 

Underbill  v.  Murphy,  259,  304,  326. 
Union  P.  R.  Co.  v.  Fort,  105,  106. 
Union  P.  R.  Co.  v.  Ruef,  213,  229,  245, 

253,   261,   263,   272,   273,   278,   281, 

310,  313,  316,  319,  321. 
Union  Sawmill  Co.  v.  Felsenthal,  66,  68. 
Union  Trust  Co.  v.  Southern  Sawmills 

&  Lumber  Co.,  64. 
United  Garment  Workers  v.  Davis,  249. 
United  States  v.  Agler,  311. 
United  States  v.  Cassidy,  258. 
United  States  v.  Debs,  214,  222,  255, 

308,  311,  314. 
United  States  v.  DriscoU,  191. 
United  States  v.  Elliott,  307. 
United  States  v.  Gordon,  259. 
United  States  v.  Haggerty,  267,  276, 

321,  326. 
United  States  v.  Kane,  318,  326. 
United  States  v.  Martin,  73,  75. 
United  States  o.  Raish,  286,  293. 


LIST  OF  CASES  CITED 


363 


United  States  v.  Weber,  326. 

United  States  r.  Workingmen'a  Amal. 
Council,  254,  307,  321. 

United  States  Cement  Co.  v.  Cooper,93. 

United  States  Heater  Co.  v.  Iron  Mold- 
era'  Union,  224,  312. 

Unnewehr  Co.  v.  Insurance  Co.,  184. 

Utter  V.  Chapman,  25. 

Vance  c.  State,  21. 

Vanuxem  v.  Bostwick,  32. 

Vegelahn  v.  Guntner,  277. 

Vilter  Mfg.  Co.  v.  Humphrey,  311,  325, 
329. 

Vilter  Mfg.  Co.  r.  Otte,  161. 

Vindicator  Consol.  Min.  Co.  r.  First- 
brook,  169. 

Virginia  &  N.  C.  Wheel  Co.  v.  Chalk- 
ley.  172,  173. 

Vitto  V.  Keogan,  161. 

Vogel  V.  Pekoe,  60. 

Von  Heyne  v.  Tompkins,  28. 

Vosberg  v.  Lumber  Co.,  98. 

Wabash  R.  Co.  r.  Hannahan,  273,  275, 

276,  296,  320. 
Wabash  R.  Co.  t>.  Kelley,  51. 
Wabash  R.  Co.  v.  McDaniels,  125. 
Wabash  R.  Co.  t».  Young,  36,  293,  295. 
Wagner  v.  Chemical  Co.,  141. 
Waiczenko  v.  Oxford  Paper  Co.,  178. 
Walker  v.  Cronin,  35,  38,  267. 
Walker  v.  Gillett,  162. 
Wallace  v.  Floyd.  47. 
Wallace  v.  Georgia,  C.  &  N.  R.  Co.,  34. 
Wallace  v.  John  A.  Casey  Co.,  202. 
Walsh  V.  Ass'n.  of  Master  Plumbers, 

282. 
Walsh  V.  New  York  &  Ky.  Co.,  16,  52. 
Walton  p.  Goodwin,  27. 
Warax  v.  Cincinnati,  etc.,  R.  Co.,  202, 

204. 
Warner  r.  Smith,  2,  3. 
Washington  A  G.  R.  Co.  c.  McDade, 

143. 
Wass  r.  State  Board,  116. 


Watcrhouse  r.  Comer.  227,  237.  255. 

Waters-Pierce  Oil  Co.  v.  State,  217, 218. 

Watkins,  Ex  parte,  311. 

Watts  r.  Commonwealth,  210. 

Waugh  r.  Shunk,  3. 

Webber  v.  Barry,  274. 

Weed  V.  Burt,  26. 

Weener  v.  Brayton,  247. 

Weidman  r.  United  Cigar  Stores  Co.,  11. 

Weiss  V.  Musical  M.  P.  4  B.  U.,  226, 

231. 
Wenham  r.  State,  102,  103. 
Western  &  A.  R.  Co.  v.  Bishop,  145. 
Western  Furniture  Co.  r.  Bloom,  93,  97, 

145. 
Western     Real     Estate     Trustees     v. 

Hughes,  203. 
Western  Union  Tel.  Co.  r.  Milling  Co., 

111. 
Western  Union  Tel.  Co.  v.  Myatt,  334. 
Wheatlcy  v.  Miscal,  16. 
Wheeling,  B.  &  T.  R.  Co.  v.  Gilmore, 

77. 
White  V.  Atkins.  16. 
White  V.  Stanley.  64. 
Whitmore  v.  Werner,  10. 
Wichita  &  W.  R.  Co.  r.  Davis.  152. 
Wiggins  Sons  Co.  r.  Cott-A-Lapp  Co., 

13. 
Wilder  ».  Stanley.  199. 
Wilkinson  v.  Black.  25. 
Willcut    &    Sons    Co.    v.    Bricklayers, 

214.  215.  229.  236.  320. 
Willett   r.    Jacksonville,    etc.,    R.   Co., 

294. 
Willcy  V.  Warden,  73. 
Wm.  Rogers  Mfg.  Co.  v.  Rogers,  13. 
Williams  r.  Egglcston,  78. 
Williams  v.  Fears,  (2  cases),  211. 
Williams  r.  H.ostings.  81. 
Williams  r.  Thacker  Coal  4  Coke  Co., 

110,  134. 
Williams.  Et  parte,  282. 
Willis  V.  Muscogee  Mfg.  Co..  33,  293, 

294. 
Willucr  r.  Silverman,  217,  294. 


364 


LIST  OF  CASES  CITED 


Wilmington   Min.   Co.  v.  Fulton,  89, 

109.  111.  172. 
Wilson  V.  Josephs,  67. 
Winkler  v.  Racine  Wagon  Co.,  26. 
Winn  V.  Southgate,  16. 
Winrod  v.  Walters,  64. 
Withey  v.  Bloem.  103. 
WoUman  v.   Fidelity  <fe  Casualty  Co., 

183. 
Woodward  v.  Washburn,  42. 
Word  V.  Winder,  14. 
Worden  v.  Searls,  312,  330. 


Workingmen's  Amal.  Councfl  v.  United 

States,  254.  312. 
Wormell  v.  Maine  C.  R.  Co.,  131. 
Wright  V.  R.  Co.,  56. 
Wright  V.  Southern  R.  Co.,  139. 
Wright  V.  Turner,  15. 
Wright  V.  Vocalion  Organ  Co.,  74. 
Wyeman  v.  Deady,  223,  300,  303,  304. 

Yick  Wo  V.  Hopkins,  119. 

Zender  v.  Seliger-Too thill  Co.,  11. 


INDEX 


Abandonment  of  railroad  trains,  etc., 

22,  271,  272. 
Accident    insurance    (see    Insurance). 
Accidents  —  provisions  for,  87. 

reports  of,  87,  88. 
Age  as  condition  of  employment,  116, 

117. 
Age,    effect    of    misrepresentation    of, 

105,  138. 
Age  limit  for  employment  of  children, 

100. 
Age  of  employee   as  ground   for  dis- 
charge, 28,  29. 
Agency,  principles  of,  as  affecting  labor 

organizations,  224,  238. 
Alien  contract  labor,  120. 
Alien   laborers,    taxing    employers   of, 

121. 
Aliens  —  discrimination    against,    115, 

118-121. 
employment  of,  on  public  works,  118, 

119. 
non-resident  beneficiaries  of  deceased, 

121,  122. 
Antitrust    law,    federal,    violations    of 

enjoinable,  321. 
Antitrust  laws,  253-256,  292,  293. 
Apprentices,  23. 

Arbitration   (see  Mediation  and  arbi- 
tration). 
Assignments  of  wages,  56-60. 
Associations,  cooperative,  207. 
Associations   of   workmen    (sec   Labor 

organizations). 
Assumption  of  risks   (see  Employers' 

liability). 
Attachment,  etc.,  of  wages,  65-57. 
Attorneys'  fees  in  suits  for  wages,  60, 

61. 

Badges  of  labor  organisations,  250. 
Bakeries,  regulation  of,  74,  84,  89,  90. 
Barrooms,  payment  of  wages  in,  65. 


Barbers,  examination  and  certification 

of,  108,  114,  115. 
Benefit  societies  —  effect  of  payments 
by,  146-149. 
forced  contributions  to,  51. 
Blacklists  — lawfulness  of,  293,  294. 

statutes  prohibiting,  295. 
Bonds  of  employees,  200,  201. 
Bonds  to  secure  payment  of  wages,  62, 

63. 
Boycotts  —  definitions  of,  282,  283. 
enjoinable  when,  318,  319. 
legality  of,  284-291. 
primary  and  secondary,  289-291. 
publication  of  notice  of,  284, 288,  289. 
statutes  prohibiting,  291-293. 
Breach  of  contracts  (see  Contracts  of 

employment,  breach  of). 
Bribery  of  employees,  41. 
Bribery  of  members  of  labor  organiza- 
tions, 234,  235. 
Buildings,  protection  of  employees  in 
construction,  etc.,  of,  86,  87,  90, 
91. 
Bureaus  of  information   (see  Employ- 
ment oflSces). 
Bureaus  of  labor,  211,  212. 

Certified  employees,  108-116. 

liability   of   employers   for   acts   of, 
109-111,  133.  134. 
Children  —  age  limit  for   employment 
of,  100. 

earnings  of,  106. 

employment  of,  in  certain  occupa- 
tions prohibited.  100,  101. 

employment  of,  regulation  of,   100- 
107. 

hiring  out  to  support  parents  in  idle- 
ness. 106.  107. 

hours  of  labor  of,  101. 

rights   of   parents   for   damages   for 
injuries  to,  105,  100. 


366 


366 


INDEX 


Children  —  Continued. 

unlawful  employment  of,   as  affect- 
ing employers'  liability,  104,  105. 
Chinese,  employment  of,  118,  119. 
Civil  rights  of  employees,  43,  44. 
Clearance  cards,  33-35. 
Closed  shop,  240-246. 

Government    Printing    Office,    241 
(note). 
Coal  to  be  weighed  before  screening,  51. 
Collective  acta  enjoinable  when,  309, 

318. 
Collective  agreements,  235-240. 
Combinations  —  as    affecting    legality 
of  actions,  245,  254,  285. 
for  what  objects  lawful,  213,  214. 
of  labor  and  capital,  status  of,  215- 

219,  290. 
restrictive,  250-253. 
(see  also  Labor  organizations.) 
Commerce,  interstate,  interference  with 

enjoinable,  254,  255,  321. 
Commissioners  of  labor,  211,  212. 
Common  law  —  code  of,  341-345. 
statutes  changing,  8,  9,  89,  111,  112 
(note),  169-172. 
Company  doctors,  72. 
Company  stores,  66,  69,  70. 
Compensation  for  injuries  to  employees, 

187-198. 
Competency  of  employees,  27,  28. 
Competition    as    justifying    boycotts, 

etc.,  284,  285,  287. 
Compliance  with  statutes,  98,  99,  129- 

131. 
Conspiracy  —  against       workingmen, 
statutes  prohibiting,  261,  299. 
causing    interference    with    employ- 
ment, 298,  299. 
classes  of,  258,  259. 
doctrine  of,  257-261. 
Constitutionality  of  statutes,  8,  9. 
Contempts  —  civil  and  criminal,  329- 
331. 
criminal  acts  as,  331. 
direct  and  constructive,  323-325. 
interference    with    receiverships    as, 

325,  326. 
labor  organizations  liable  for,  329. 
passive,  325. 

power  of  courts  to  punish,  323,  324. 
punishment  for,  328-330. 


statutes  regulating,  324,  325. 

what  constitutes,  323,  326-328. 

who  liable  for,  328. 
Contract  —  freedom  of,  4,  5. 

grounds  for  interference  with  free- 
dom of,  6-9. 

limitations  on  freedom  of,  6,  7. 

not  to  join  unions,  296. 

of  labor  organizations,  235-240. 

to  employ  union  labor,  240-242. 

waiving  rights,  94,  95,  144-149. 
Contract   of  employment  —  breach  of 
by  employees,  14-16. 

breach  of  by  employers,  24-27. 

breach  of,  endangering  life,  22. 

change  of  circumstances  as  affecting, 
31,  32. 

conditions  of,  2-5. 

deception  in,  4. 

dissolution  of,  30-33. 

effect  on,  of  agreement  to  give  satis- 
faction, 28,  29. 

effect  on,  of  rules,  customs,  etc.,  3. 

enforcement  of,  12-15,  318,  319. 

enforcement  of,  statutory  provisions 
for,  16-23. 

entire,  12,  15,  16. 

forms  of,  1,  2. 

freedom  to  make,  4-7,  315,  316. 

implied,  1. 

interference  with,  35-42,  296. 

must  be  in  writing  when,  1. 

procuring  breach  of,  35-42. 

repudiation  of,  damages  for,  24-27. 

seamen,  23,  24. 

second  during  term  of  first,  21,  22. 

term  of,  9-12. 

termination  of,  30-33. 

with  intent  to  defraud,  17-21. 
Contractors'    bonds  as  protection  for 

wages,  62,  63. 
Convict  labor,  122,  123. 
Convict-made  goods,  sale  of,  122,  123. 
Cooperative  associations,  207. 
Cooperative  insurance  of  workmen,  184, 

185. 
Corporations — as  subjects   of   special 
laws,  67,  68  (note). 

liability    of    stockholders    for    wage 
debts  of,  63. 
Course  of  employment,  175-177,  202, 
203. 


INDEX 


367 


Courts,  relation  of,  to  legislatures, 
8.  9. 

Crimes,  restraint  of  commission  of,  by 
injunction,  307,  308. 

Criminal  acts  as  contempts,  331. 

Customs  of  trade,  effect  of,  on  con- 
tracts, 3. 

Damages  —  as   remedy  for   breach   of 
contract,  14-16,  24-27. 
awarded  in  injunction  suits,  317. 
recoverable     for     interference     with 
employment,  35-39,  294,  297,  298, 
300-304. 
who  liable  for,  in  strikes,  etc.,  304. 
Day  of  rest,  weekly,  80. 
Death   as   affecting   contracts   of  em- 
ployment, 30-32. 
Deceased  employees,  payment  of  wages 

due,  46. 
Discharge  of  employees  —  grounds  for, 
27-30. 
statement  of  cause  of,  33-35. 
Discharged    employees  —  duty    of,    to 
secure  other  employment,  25,  26. 
payment  of  wages  due,  53,  54. 
Discounts  and   bonuses  to  employees 

making  purchases,  41. 
Domestic  products,  preference  of,  for 

public  use,  118,  119. 
Duties   of   employers   and  employees, 
2.3. 
(see  also  Employers'  liability) . 

Eating  in  certain  workrooms,  84. 
Emigrant  agents,  210,  211. 
Employees  —  negligence  of,  199-204. 
pensions  for,  206,  207. 
right  to  recover  damages  for  inter- 
ference with  employment,  35-39, 
294,  297,  298,  300-304. 
special  stock  for,  206. 
taxes  of,  liability  of  employers  for, 
205,  206. 
Employer    and    employee  —  basis     of 
relation  of,  1,  2. 
inequality  of,  as  parties  to  contract, 

6,  7.  53,  72,  216,  251,  252  (note), 
joint  liability  of,  for  injuries,  204. 
status  of,  how  determined,  2-4. 
Employers'  advances,  17-21. 
Employers'  certificates,  33-35. 


Employers'    liability    for    injuries    to 

employees,  124-186. 
acts  of  certified  employees,  109-111. 
appliances,  rule  as  to,  126,  127. 
association  theory  of,  158,  159. 
assumption  of  risks,  93-98,  140-144. 
assurance  of  safety,  174,  175. 
care,  rule  as  to,  124-126. 
care,  standard  of,  fixed  by  statute, 

127-131. 
common  employment,  157,  158. 
comparative  negligence,  152,  153. 
compliance  with  statutes  as  affect- 
ing, 93-97, 129. 
contemplated  risks,  158,  159. 
contracting  out,  144-149. 
contracts  with  labor  organizations, 

179,  180. 
contributory  negligence,  149-152. 
customary  method  or  use,  departure 

from,  by  employee,  131. 
dangerous   occupations   as   affecting 

degree  of  care,  125,  126. 
defenses  of  employers,  139-169. 
departmental  doctrine,  159,  160. 
details  of  work,  178,  179. 
direct  orders  of  employers,  173,  174. 
duties  of  employers,  124-138. 
fellow-servants,  duty  in  hiring,  135, 

136. 
fellow-service,  defense  of,  153-172. 
fellow-service  rule,  reasons  for,  155, 

156. 
fellow-service,  theories  of,  158-167. 
inspection,  duty  of  employer  as  to, 

131-135. 
inspections,    government,    effect   of, 

133,  134. 

instructions  and  warnings  to  employ- 
ees, 137,  1,38. 

instrumentalities,  supply  of,  126. 

insurance,  180-184. 

labor  organizations,  contracts  with, 
179,  180. 

law  determining,  124. 

maintenance  and  repair,  130,  131. 

negligence,  139. 

non-dclegable  duties  of  employer,  138. 

ownersliip   of   appliances,   effect   of, 

134,  1.35. 

place  and  instrumentalitiea,  126,  127. 
repairs,  130,  131. 


368 


INDEX 


Employers'  liability  —  Continued. 
repairs,  efifect  of  promise  to  make, 

172,  173. 
rules,  duty  to  make,  136,  137. 
rules  shifting  liability,  144. 
safe  place,  126,  127. 
statutes  modifying,  169-172. 
Sunday  labor  in  violation  of  statute, 

80,  81. 
variation  of  course  of  employment, 

175-178. 
vice-principals,  160,  163-167. 
violation  of  statutes,  93-98,  127-129. 
"  volenti  non  fit  injuria,"  140. 
volunteers,  1,  177,  178. 
working  force,  135,  136. 
Employers'   liability  to  third  persona 
for  negligence  of  employees,  201- 
204. 
Employers,  right  of,  to  recover  damages 
for  interference   with   employees, 
37-40,  301,  302,  317. 
Employment,   discrimination  in,   pro- 
hibited, 5. 
Employment,  foremen,  etc.,  accepting 

fees  for  furnishing,  211. 
Employment,  new,  duty  of  employee 

to  seek,  after  discharge,  25,  26. 
Employment,    offer    of    different,    by 
employer  after  breach  of  contract, 
26. 
Employment  offices,  208-211. 
Enforcement  of  labor  contract,  12-16. 

statutes  providing  for,  16-23. 
Engineers,   examination  and  licensing 

of,  109,  112,  116. 
Enticing  employees,  35-40. 
Equity  control  of  labor  organizations, 

225.  306-317. 
Erdman  Act,  mediation  and  arbitra- 
tion under,  337-340. 
Examination  and  licensing  of  workmen, 
108-116. 
grounds  for,  112-116. 
Exemption  of  wages  from  garnishment, 
etc.,  55-57. 

Factory  regulations,  83,  84,  89,  90. 
Fees  for  employment,   foremen,   etc., 

receiving,  211. 
Fellow-service     {see    Employers'    lia- 

biUty). 


Fines  by  labor  organizations,  214,  216, 
226-230,  240,  266,  267,  286,  301, 
327. 

Fines  for  imperfect  work,  50,  51. 

Fines  on  non-members  by  labor  organi- 
zations, 266,  286,  301. 
recovery  of,  301 . 

Fire  escapes  on  factories,  etc.,  83. 

Food  not  to  be  eaten  in  certain  work- 
rooms, 84. 

Foremen,  etc.,  receiving  fees  for  em- 
ployment, 211. 

Freedom  of  contract,  4-6,  315,  316. 
statutes  affecting,  5-9. 

Freedom  of  employer  to  fix  physical 
conditions,  83,  93-98,  115,  116, 
127. 

Freedom  of  speech,  284,  288,  289,  308- 
310,  327,  328. 

Freedom  to  trade,  70-72. 

Full  crew  on  railroad  trains,  laws  re- 
quiring, 85,  91. 

Garnishment  of  wages,  55-57. 
Guards  for  dangerous  machinery,  83, 
84,  89,  92. 

Hiring  by  day,  week,  month,  or  year, 

effect  of,  9-11. 
Horseshoers,   examination  and   licens- 
ing of,  109,  114. 
Hospital  fees,  withholding,  51. 
Hours  of  labor  —  in  bakeries,  74,  78. 

in  mines,  etc.,  74,  77. 

of  women  and  children,  101-103. 

on  public  works,  74,  75,  78,  79. 

on  railroads,  74,  76-78. 

regulation  of,  73-79. 

Illiterate  engineers,  etc.,  on  railroads, 

116. 
Implied  contracts,  1. 
Implied  term  of  contracts  of  employ- 
ment, 9-11. 
Incompetence  —  as      affecting      wage 
rates,  47,  48. 
as  ground  for  discharge,  27,  28. 
Injunctions  —  antitrust  act  enforceable 
by,  321. 
appeals  from,  312,  313. 
award  of  damages,  317. 
binding  when,  310-313. 


INDEX 


369 


Injunctions  —  Continued. 

"blanket  injunctions,"  313,  314. 
bonds  in  cases  of,  310,  311. 
boycotts  subject  to  when,  318,  319. 
classes  of,  305,  306. 
criminal  acts,  as  such,  not  subject 

to,  307.  308. 
disclosure  of  trade  secrets,  13,  14. 
effect    of    statutes    legalizing    labor 

organizations  on,  314,  315. 
effect  on  persons  not  parties,  313. 
employment    in    violation    of    prior 

contract  subject  to,  13,  14. 
granted  when,  306-308. 
incitement  to  strikes,  319-321. 
interference  with  contracts,  296,  297. 
interstate     commerce,     interference 

with,  308. 
irregularity  in,  effect  of,  311. 
issued  at  whose  instance,  308,  316, 

317. 
jurisdiction    of    state    and    federal 

courts,  310. 
labor  organizations  as  parties,  217, 

221.  222,  313,  314. 
libel,  as  such,  not  subject  to,  308-310. 
mails,  hindering,  255,  308,  321. 
mandatory,  305. 
modern  use  of,  305. 
nature  of,  305,  306. 
obedience  required  when,  311,  312. 
persons  bound  by,  313,  314.  328. 
persuasion  subject  to,  319,  320. 
picketing,  321-323. 
preliminary  or  interlocutory.  306. 
prevention  of  disruption  of  unions, 

217,  317. 
"probable    expectancies"    protected 

by,  316. 
protection   of  intangible  rights   by, 

315,  316. 
state  may  procure,  308. 
strikes  subject  to,  when,  320.  321. 
validity    of.    how    determined,    311, 

312. 
Injuries  to  employees  —  by  third  per- 
sons, 42,  43. 
compensation  for.  187-198. 
employers'  liability  for,  124-186. 
Insolvency  of  employer,  effect  of,  32. 
Inspection  —  employers'    duty   as    to, 

131-135. 


of  factories,  etc.,  laws  relating  to,  83, 
84.  89-93.  133. 
Inspectors'  certificates,  98,  99. 
Inspectors,  factory,  92,  93. 
Insurance  —  accident,  freedom  of  em- 
ployees in  procuring.  72. 

employers'  liability.  180-184. 

mutual,  of  employers,  184. 

workmen's.  184-186. 
Interference  with  contracts  of  employ- 
ment. 35-42,  296. 

civil  and  criminal  liability  for,  304. 

damages  for,  297-304. 

motive,  36-39,  297,  298. 

remedies  for,  300-323. 

statutes  prohibiting,  39-41,  299,  300. 
Interstate  commerce,  interference  with, 

255,  256,  308. 
Intimidation    of    employers    and    em- 
ployees, 41,  42,  286-289. 297-300. 

by  labor  organizations,  298-300. 

statutes  prohibiting.  299.  300. 
Intoxication  of  employees.  201. 

procuring.  42.  43. 
Inventions  of  employees,  73,  74. 

Justification  for  interference  with  em- 
ployment, 274,  275. 

Labor  agents,  210,  211. 
Labor  as  capital,  5,  253,  316. 
Labor  bureaus,  211,  212. 

{see  also  Employment  offices). 
Labor  organizations  —  actions  by  and 
against,  217-224. 
antitrust  laws  as  affecting,  253-256. 
applications  for  membership,  233. 
as  affecting  third  parties,  214. 
badges  of,  250. 

bribery  of  ofl5cers  of,  234,  235. 
by-laws,  rules,  etc.,  of,  226-230. 
closed  shop  agreements  of,  240-246, 

302.  303. 
coercion  by,  229,  236,  240,  243,  246, 

273,  274,  286,  287,  326. 
collective  agreements,  235-240,  245. 
contracts  by.  224,  235-240. 
contracts    of,    effect    on    individual 

contracts,  237-239. 
contracts  of.  validity  of,  235-237, 239. 
contracts  to  employ  only  members  of, 
240-242. 


2b 


370 


INDEX 


Labor  organizationa  —  Contintted. 
contracts  with,  as  affecting  employ- 
ers' liability,  179.  180. 
corporate  character  of,  219-226. 
damages  for  acts  of,  231, 232, 239, 242. 
discharge  of  workmen  on  account  of 

membership  in,  233,  234. 
dissolution  of,  227,  232,  251. 
embezzlement  of  funds  of,  225,  226. 
enforcement  of  rules,  etc.,  of,  226- 

229. 
enjoinable,  217,  221 ,  222. 
equity    courts    best    suited   to    deal 

with,  225. 
exemptions  affecting,  218,  253,  260. 
expulsion  as  interference  with  em- 
ployment, 297. 
expulsion  of  members,  225,  230-232, 

239,  297,  298. 
fines  against,  222. 
fines  by,  214,  215,  226-230,  240,  266, 

267,  286,  301,  327. 
incorporated,  status  of,  217,  218. 
interference,     statutes     prohibiting, 

299,  300. 
interference    with    employruent    by, 

295-300. 
labels  or  trade-marks  of,  246-250. 
law  governing,  217-226. 
legality  of,  213,  214. 
liability  of,  for  damages,  222.  223, 

297-299.  301-304. 
liability  of,  in  contempt  proceedings, 

313,  327-329. 
liability  of  members,  222,  223,  304. 
mandamus  to  restore  membership  in, 

231,  232,  304. 
membership  in,  230-234. 
nature  of,  213-217. 
numbers,  coercive  effect  of,  in,  245, 

254,  262,  274,  277. 
oflBcials    of,    may    advise   members, 

275,  276,  296. 

organizers  of,  may  not  incite  strikes, 

276,  320,  321. 

partnership  character  of,  219-221. 
payment  of  strike  benefits  by,  276. 
principals  and  agents  in,  224,  238. 
protection  of  employees  as  members, 

233,  234. 
representative   capacity   of   officers, 

296. 


restoration  to  membership,  231,  232, 

304. 
rival     unions,    296-298,    302,    317, 

327. 
rules,  by-laws,  etc.,  of,  226-230. 
rules  of,  as  affecting  freedom  of  con- 
tract. 6.  213.  226. 
rules  of,  as  defense  in  suits  for  dam- 
ages, 214-216,  229,  230. 
status  of,  217-226. 
suits  by  and  against,  217-224. 
unincorporated,  status  of,  218-226. 
voluntary    character    of,    213,    214, 
218,  219. 
Legislatures,  authority  of,  7-9. 
Letters  of  recommendation,  33-35. 
Liability  for  damages  for  interference 
with  employment,  35-39,  294,  297, 
298.  300-304. 
Liability    of    employees   for    negligent 

acts.  199-201,  204. 
Liability  of  employers  —  for  injuries  by 
strikers,  269,  270. 
for  injuries  to  employees  (see  Em- 
ployers' liability), 
for  taxes  of  employees,  205,  206. 
to   third   persons   for   neghgence   of 
employees,  201-204. 
Libel,  restraint  of,  by  injunction,  308- 

310. 
Licensing  of  workmen,  108-116. 
Liens  for  wages,  61.  62. 
Life-saving  service,  injured  employees 

in.  192. 
Limitations   on   freedom   of   contract, 

6-9. 
Liquor  —  sale  of.  near  labor  camps,  99. 
sale  of.  to  employees,  42,  43,  99. 
taking,  into  mines,  mills,  etc.,  99. 
use  of,  on  trains,  99. 

Mails,    interference    with,    enjoinable, 

255,  308,  321. 
Married  women,  earnings  of,  106. 
Mechanics',  etc.,  liens,  61,  62. 
Mediation  and  arbitration  —  boards  of, 
how  chosen,  332. 
construction  of  statutes  relating  to, 

334-340. 
definitions.  332. 

enforcement  of  awards,  333,  334. 
statutory  provisions  for,  331-333. 


INDEX 


371 


Mine     employees,     examination     and 

certification  of,  108,  109,  112. 
Mine  foremen,  certified,  status  of,  109- 

111. 
Mine  regulations,  86,  90. 
Minors,  earnings  of,  106. 
Motive  as  element  in  interference  with 

employment,  36,  37,  242,  245,  297, 

298,  303,  304. 
Motive  of  acta  as  affecting  legality, 

274,  275. 

National  Guard,  protection  of  work- 
men as  members  of,  44. 

Negligence  of  employees,  199-204. 
joint  liability  for,  204. 
liability  of  employee  for,  199-201. 
liability  of  employer  to  third  persons 
for,  201-204. 

Negligence  of  employers,  liability  to 
employees  for  (see  Employers' 
liability) . 

Negligence  of  operators  of  steam  boil- 
ers, etc.,  200. 

Negligence,  violation  of  safety  laws  as, 
93-97,  127-129. 

Night  work  by  women  and  children, 
101,  103. 

Notice  of  termination  of  contract, 
32,  33. 

Orders  —  disobedience  of,  as   grounds 
for  discharge,  29. 
negligent,  by  employer,  173,  174. 
Overtime  pay,  73,  75,  76. 

Payee  of  wages,  who  is,  46,  106. 
Payment  of  wages  —  due  deceased  em- 
ployees, 46. 

in  scrip,  64-69. 

in  violation  of  statute,  46,  47,  65. 

place  of,  55. 

time  of,  as  indicating  term  of  con- 
tract, 9-11. 

time  of,  statutes  regulating,  51-55. 

to  discharged  employees,  53,  54. 
Pensions  for  employees,  206,  207. 
Peonage,  18-21. 
Permanent  employment,  contracts  for, 

9. 
Persuasion  —  enjoinable  when,  319, 320. 

to  strike,  right  of,  272-276. 


Physicians,  freedom  in  selection  of,  72. 
Picketing  —  enjoinable  when,  321-323. 
lawfulness  of,  27(5-281. 
statutes  prohibiting,  281,  282. 
Plumbers,     examination     and     regis- 
tration of,  109,  113,  114. 
Police  power,  7-9. 
Preference  of  wage  claims  over  other 

debts,  63,  64. 
Prison  labor  (see  Convict  labor). 
"Probable  expectancies,"  doctrine  of, 

316. 
Profit-sharing  by  employees,  206. 
Property,    right    to    employment    as, 

5,  6.  315,  316. 
Protection  of  employees  —  as  members 
of  labor  organizations,  233,  234. 
as  members  of  National  Guard,  44. 
as  traders,  70-72. 
as  voters,  43,  44. 
Public  printing,  union  label  on,  249, 

250. 
Public  work,   closed  shop  agreements 

in,  240,  241. 
Public  works  —  employment  of  resident 
laborers  on,  118,  119. 
hours  of  labor  on,  74,  75,  78,  79. 
preference  of  domestic  products  for, 

118,  119. 
rates  of  wages  on,  48-50. 

Quantum  meruit,  when  action  may  be 
brought,  3,  47. 

Railroad  employees,  examination  and 
certification    of,     108,     112,     113, 
116. 
Railroad  repair  shops  to  be  maintained 

within  the  state,  120,  121. 
Railroad  trains  —  abandonment  of,  22, 
271.  272. 
special,  for  workingmen,  207. 
suflRciont  crows  for,  85,  91. 
Railroads  —  employment  of    illiterate 
engineers,  etc.,  on,  116. 
hours  of  lalwr  on,  74,  76-78. 
liability  laws  affecting,  171,  172. 
safety  appliances  on,  85,  89-92. 
Railway  mail  clerks,  injured,  192,  193. 
Rate  of  wages,  3,  47-50. 
changing,  47,  48. 
regulation  by  statute,  48-50. 


372 


INDEX 


Ratification  by  employer  of  negligent 
acts  of  employee,  203,  204. 

Refusal  to  deal,  254,  283-285. 

Registration  of  workmen,  108-116. 

Relief  benefits,  146-149. 

Resident  laborers,  preference,  in  em- 
ployment, 117-121. 

Respondeat  superior,  doctrine  of,  201, 
202. 

Restraining  orders  (see  Injunctions). 

Right  to  contract,  4,  5,  315,  316. 

Rights  of  employees  —  as  traders,  70-72. 
as  voters,  43,  44. 

Rules  of  employer  as  affecting  con- 
tracts, 3. 

Safe  place,  common  law  as  to,  126,  127. 
Safe    place    and    appliances,    statutes 

requiring,  83-99. 
Safety  appliances  —  in  factories,  83, 84, 

89,  90. 
on  railroads,  85,  89-92. 
Safety  laws  —  constitutionality  of,  88- 

92. 
disobedience    of,    as    affecting    em- 
ployers' liability,  93-98,  127-129. 
enforcement  of,  92,  93. 
Salary  and  wages,  45,  46. 
Satisfactory  services,  test  of,  28,  29. 
Scrip,  tokens,  etc.,  payment  of  wages 

in,  64-69. 
Seamen,  contracts  of  employment  of, 

23,  24. 
Seats  for  female  employees,  103,  104. 
Service,  variation  of,  29,  30. 
Sickness,    effect    of,    on    contract    of 

employment,  16,  31,  32. 
Special  legislation,  171,  172. 
Specific    performance   of   contracts   of 

employment,  12-15. 
Statutes  modifjang  common  law,  8,  9, 

89,  HI,  112  (note),  169-172. 
Steam  boilers,  inspection  of,  84. 
Stevedores'  bonds  for  wages,  62. 
Stock,  special,  for  employees,  206. 
Stockholders  of  corporations,  liability 

of,  for  wags  debts,  63. 
Store   orders   as   payment   for  wages, 

65-70. 
Street  railways,  safety  appliances,  etc., 

on,  86. 
Strike  benefits,  276. 


Strike  insurance,  272. 

Strike  notices,  266. 

Strikers  as  trespassers,  273,  274. 

Strikes  —  definition  of,  261,  262. 

effect  of,  on  duty  of  employers,  269, 

270. 
effect   of,    on   relation   of   employer 

and  employee,  263,  264,  272,  273. 
failure  to  render  service  because  of, 

269. 
fear  of  injury  during,  as  excuse  for 

violation  of  contract,  269,  270. 
incitement  of,  271-276. 
incitement  of,  enjoinable  when,  320, 

321. 
injuries     to     employees     accepting 

service  during,  270. 
injuries  to  third  persons  during,  269. 
legality    of,    how    determined,    262- 

266,  271. 
liability  of  municipalities  for  dam- 
ages caused  by,  271. 
notice    of,     in    advertisements    for 

laborers,  4,  270. 
of  railroad  employees,  22,  271,  272. 
participation  in,  notice  of,  not  to  be 

required,  270,  271. 
statutes  authorizing,  271. 
sympathetic,  268. 
unlawful  when,  266-268. 
Striking    employees,    status    of,    263, 

264,  272,  273. 
Suflicient  compliance  with  safety  laws, 

98,  99,  135. 
Suits  at  law  as  remedies  for  interfer- 
ence with  employment,  300-304. 
Suits  for  wages,  60,  61,  107. 
Sunday  labor,  79-82. 

as  affecting  employers'  liability,  80,81 . 
as  affecting  recovery  of  wages,  etc., 
81,  82. 

Taxes  of  employees,  liability  of  em- 
ployers for,  205,  206. 

Term  of  contract  of  employment,  9—12. 

Tips  to  waiters,  41. 

Ton  as  basis  for  wage  payments,  76. 

Trade  agreements,  235-240. 

Trade-marks  of  trade-unions  (see 
Union  labels). 

Trade  secrets,  disclosure  of,  13,  14. 

Trade-unions  (see  Labor  organizations). 


INDEX 


373 


Trains,  special,  for  workingmen,  207. 
sufficient  crewa  for,  85,  91. 

Unfair  lists,  publication  of,  enjoinable 

when,  309,  310. 
Union  labels  —  as  trade-marks,  246-248. 
forgery,  etc.,  of,  249. 
statutes  protecting,  247-249. 
Union   labor,    contracts   for   exclusive 
employment  of,  240-246. 

Violation  of  law  by  employee,   effect 

of,  on  recovery  of  wages,  46,  81,  82. 
Violation  of  safety  laws  as  negligence, 

93-98,  127-129. 
"  Volenti  non  fit  injuria,"  doctrine  of, 

140. 
Volunteers,  1,  177,  178. 
Voters,  protection  of  employees  as,  43, 

44. 

Wage  brokers,  57-60. 
Wage  claims  —  preference  of,  63,  64. 
sending  outside  state  for  collection, 

56,  57. 
Wages  —  assignments  of,  56-60. 

contractors'   bonds  for  security  of, 

62,  63. 
deductions  from,  for  benefit  societies, 

etc.,  51. 
deductions  from,  for  imperfect  work, 

50,  51. 
definition  of,  45,  46. 
due  deceased  employees,  46. 
due  discharged  employees,  53,  54. 
for  work  done  in  violation  of  law, 

46,  81,  82. 
garnishment  of,  55-57. 


improper   payment   of,  46,  47,  66- 

57. 
judgments  for,  60. 

liability    of    stockholders    of    corpo- 
rations for,  63. 
liens  for,  61,  62. 
of  married  women,  106. 
of  minors,  106. 
of  women,  suits  for,  106,  107. 
paid  before  breach  of  contract,  16. 
payment  of,  in  scrip,  64-69. 
payable  to  whom,  46,  106. 
place  of  payment  of,  55. 
prior  payment  of,  in  settlement  of 

estates,  etc.,  63,  64. 
rate  of,  47-50. 
recovery  of,  after  breach  of  contract, 

15,  16. 
refusal  to  pay,  54,  55. 
retention  of,  as  pledge,  66. 
suits  for,  60,  61,  107. 
time  of  pajTnent  of,  51-54. 
withholding  for  benefit  funds,  hos- 
pitals, etc.,  51. 
Waiver  of  provisions  of  safety  laws, 

94,  95, 144-149. 
Weekly  day  of  rest,  80. 
Weighing  coal  before  screening,  51. 
Women  and  children,  employment  of, 

100-107. 
Women  —  hiring  out,  to  support  hus- 
bands in  idleness,  107. 
hours  of  labor  of,  101-103. 
wages  of,  48,  106,  107. 
Workmen's  compensation  for  injuries, 

187-198. 
Workmen's  insurance,  184-186. 
Workmen's  trains,  207. 


T 


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By   SCOTT    NEARIx\G,    Ph.D.,  of    the    Wharton    School, 
University  of  Pennsylvania 

Cloth,  i2mo,  $1.25  net ;  by  mail,  $1.34 
This  work  represents  an  examination  of  statistics  offered  by  various 
states  and  industries  in  an  effort  to  determine  the  average  wage  in  the 
United  States.  As  a  scholarly  and  yet  simple  statement  it  is  a  valuable 
contribution  to  the  study  of  one  side  of  our  social  organization. 


Wage-Earning  Women 


By  ANNIE  MARION  MacLEAN,  Professor  of  Sociology  in 
Adelphi  College 

Cloth,  leather  back,  i2mo,  $1.25  net ;  by  mail,  $1.35 
"This  book  needed  to  be  written.  Society  has  to  be  reminded  that 
the  prime  fiinction  of  women  must  ever  be  the  perpetuation  of  the  race. 
It  can  be  so  reminded  only  by  a  startling  presentation  of  the  woman  who 
is  '  speeded  up '  on  a  machine,  the  woman  who  breaks  records  in  pack- 
ing prunes  or  picking  hops,  the  woman  who  outdoes  all  others  in 
vamping  shoes  or  spooling  cotton.  .  .  .  The  chapters  give  glimpses 
of  women  wage-earners  as  they  toil  in  different  parts  of  the  country. 
The  author  visited  the  shoeshops,  and  the  paper,  cotton,  and  woollen 
mills  of  New  England,  the  department  stores  of  Chicago,  the  garment- 
makers'  homes  in  New  York,  the  silk  mills  and  potteries  of  New  Jersey, 
the  fruit  farms  of  California,  the  coal  fields  of  Pennsylvania,  and  the 
hop  industries  of  Oregon.  The  author  calls  for  legislation  regardless 
of  constitutional  quibble,  for  a  shorter  work-day,  a  higher  wage,  the 
establishment  of  residential  clubs,  the  closer  cooperation  between  ex- 
isting organizations  for  industrial  betterment."  —  Boston  Advertiser . 

Making  Both  Ends  Meet : 

The  Income  and  Outlay  of  New  York  Working  Girls 

By  SUE  AINSLIE  CLARK  and  EDITH  WYATT 

Illustrated,  cloth,  i2mo,  270  pages,  $1.50  net;  by  mail,  $1.60 
The  girl  who,  without  friends  or  home,  is  obliged  to  earn  her  living 
in  a  big  city,  faces  a  very  real  problem.  Various  phases  of  this  prob- 
lem have  been  dealt  witli  by  philanthropic,  social  and  religious  workers 
and  writers,  but  the  solution  is  seemingly  as  far  away  as  ever.  Though 
there  are  many  homes  and  organizations  of  a  semi-charitable  nature  in 
all  our  large  cities,  these  really  can  care  for  and  watch  over  but  a  small  per 
cent  of  the  working  girl  population.  Those  who  for  one  reason  or 
another  do  not  come  within  the  radius  of  these  institutions  must  shift 
entirely  for  themselves.  These  are  the  subjects  of  Mrs.  Clark  and 
Miss  Wyatt's  book. 

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American  Social  Progress  Series 

Edited  by 

Professor    SAMUEL    McCUNE    LINDSAY,    Ph.D.,    LL.D., 

Columbia  University 


A  series  of  handbooks  for  the  student  and  general  reader,  giving 
the  results  of  the  newer  social  thought  and  of  recent  scientific  in- 
vestigations of  the  facts  of  American  social  life  and  institutions. 
Each  volume  about  200  pages. 

1  — The  New  Basis  of  Civilization.    By  Simon  N.  Patten,  Ph.D., 

LL.D.,  University  of  Pennsylvania.     Price,  $1.00  net. 

2  —  Standards  of  Public  Morality.     By  Arthur  Twining  Had- 

LEY,   Ph.D.,  LL.D.,  President  of  Yale  University.     Price, 
$1.00  net. 

3  —  Misery  and   Its   Causes.     By  Edward   T.  Devine,  Ph.D., 

LL.D.,  Columbia  University.     Price,  $1.25  net. 

4  —  Government  Action  for  Social  Welfare.     By  Jeremiah  W. 

Jenks,  Ph.D.,  LL.D.,  Cornell  University.     Price,  $1.00  net. 

5  —  Social  Insurance.    A  Program  of  Social  Reform.    By  Henry 

Rogers  Seager,  Ph.D.,  Columbia  University.     Price,  $1.00 
net. 

6  —  The  Social  Basis  of  Religion.     By  Simon  N.  Patten,  Ph.D., 

LL.D.,  University  of  Pennsylvania.     Price,  $1.25  net. 

7  —  Social  Reform  and  the  Constitution.    By  Frank  J.  Goodnow, 

LL.D.,  Columbia  University.     Cloth,  izmo,  $1.50  net. 


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Principles  of  Economics 


By  F.  W.  TAUSSIG,  Henry  Lee  Professor  of  Economics  in 

Harvard  University. 

2  vols.     Cloth,  8vo,  ^4.00  n£f 


The  book  deals  chiefly  with  the  industrial  conditions  of  modem 
countries,  and  most  of  all  with  those  of  the  United  States. 
Economic  history  and  economic  development  are  not  con- 
sidered in  any  set  chapters,  being  touched  only  as  they  happen 
to  illustrate  one  or  another  of  the  problems  of  contemporary 
society. 

Among  the  important  chapters  are  those  on  Wealth  and  Labor ; 
The  Division  of  Labor  and  the  Development  of  Modern  In- 
dustry ;  Quantity  of  Money  and  Prices  ;  Differences  of  Wages  ; 
Wages  and  Value ;  General  Wages  ;  Trade-Unions  and  Labor 
Legislation. 

Of  these  perhaps  the  most  important  is  that  dealing  with 
General  Wages.  Here  the  fundamental  questions  as  to  general 
wages  as  raised  by  the  case  of  hired  laborers  is  discussed  ;  also 
the  notion  that  lavish  expenditure  creates  demand  for  labor 
and  makes  wages  high. 

The  author  explains  why  hired  laborers  universally  desire  that 
employment  should  be  created  and  dislike  labor-saving  ap- 
pliances. 

The  author  states  the  principles  of  economics  in  such  form  that 
they  are  comprehensible  to  an  educated  and  intelligent  person 
who  has  not  before  made  any  systematic  study  of  the  subject. 


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